Nieman v. Grange Mutual Casualty Company et al

Filing 39

OPINION (See Written Opinion): The Motion to Dismiss of Defendant Integrity Mutual Insurance Company d/e 8 is DENIED. The Motion to Dismiss of Defendant Grange Mutual Casualty Company d/e 11 is DENIED. The Motion to Dismiss of Defendant Cindy Heindel for Lack of Personal Jurisdiction d/e 16 is ALLOWED. The Motion to Dismiss of Defendants Criterion Executive Search of Florida, Inc., and Michael Tingley for Lack of Personal Jurisdiction d/e 24 is ALLOWED. The Claims asserted against D efendants Heindel and Tingley are DISMISSED WITH PREJUDICE. The Plaintiff's Motion for Leave to file an Amended Complaint as to Defendant Heindel d/e 21 is DENIED. The Plaintiff's Motion for Leave to file an Amended Complaint against De fendants Tingley and Criterion d/e 29 is ALLOWED IN PARTand DENIED IN PART. The Motion is DENIED as to Tingley and ALLOWED as to Criterion. Any Amended Complaint is due no later than May 25, 2012. The Plaintiff's Motion for Sanctions against Defendants Criterion and Tingley and their Counsel, David Holmes, d/e 35 is DENIED. The Plaintiff's Motion to Strike Portions of the Defendants' Opposition to the Motion for Sanctions [d/e 38] is DENIED AS MOOT. Any other pending Motions are DENIED AS MOOT. Entered by Judge Richard Mills on 04/26/2012. (VM, ilcd) Added document hyperlink brackets on 4/27/2012 (ME, ilcd).

E-FILED

Friday, 27 April, 2012 09:25:28 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JASON LEE NIEMAN,

)
)
Plaintiff,
)
)
v.
)
)
GRANGE MUTUAL CASUALTY
)
COMPANY, INTEGRITY MUTUAL )
INSURANCE COMPANY AND
)
CINDY HEINDEL, INDIVIDUALLY )
AND AS AN EXECUTIVE OFFICER )
OF INTEGRITY MUTUAL
)
INSURANCE COMPANY;
)
CRITERION EXECUTIVE SEARCH )
OF FLORIDA, INC.; MICHAEL
)
(“MIKE”) TINGLEY, INDIVIDUALLY)
AND AS AN OFFICER AND/OR
)
EMPLOYEE OF CRITERION
)
EXECUTIVE SEARCH, INC.,
)
)
Defendants.
)

No. 11-3404

OPINION
RICHARD MILLS, U.S. District Judge:
Plaintiff Jason Lee Nieman has filed a Pro Se Complaint, wherein he
asserts a number of claims pursuant to Title VII, 42 U.S.C. §§ 2000e et
seq., the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, and the

Age Discrimination and Employment Act, 29 U.S.C. §§ 621 et seq. The
Plaintiff has also asserted claims pursuant to the Illinois Human Rights Act,
775 ILCS 5/1-101 et seq.. The Court now considers several Motions to
Dismiss filed by the Defendants. Pending also are the Plaintiff’s Motion
for Sanctions and his Motion to Strike the Opposition of the Defendants
to his Motion for Sanctions.
I. Motion of Integrity Mutual Insurance Company
Defendant Integrity Mutual Insurance Company (“Integrity”) has
moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
to dismiss the Plaintiff’s Complaint.

Integrity contends that Plaintiff

cannot state a plausible claim for age discrimination or retaliation in
violation of the Age Discrimination in Employment Act (“ADEA”), Title
VII, 42 U.S.C. § 1981, or the Illinois Human Rights Act (“IHRA”).
At this stage, the Court accepts as true all of the facts alleged by the
Plaintiff and draws all reasonable inferences therefrom. See Virnich v.
Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). “[A] complaint must provide
a short and plain statement of the claim showing that the pleader is entitled

2

to relief, which is sufficient to provide the defendant with fair notice of the
claim and its basis.” Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011)
(internal quotation marks omitted). Courts must consider whether the
complaint states a “plausible” claim for relief. See id. The complaint must
do more than assert a right to relief that is “speculative.” See id. However,
the claim need not be probable: “a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.” See Independent Trust
Corp. v. Stewart Information Services Corp., 665 F.3d 930, 935 (7th Cir.
2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“To meet this plausibility standard, the complaint must supply ‘enough fact
to raise a reasonable expectation that discovery will reveal evidence’
supporting the plaintiff’s allegations.” Id. The allegations of a pro se
plaintiff are more liberally construed than are complaints which are drafted
by lawyers. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
Specifically, Integrity asserts that the claims it rejected the Plaintiff’s
employment action because of his age in violation of the ADEA (Count I)

3

and the IHRA (Count VII) should be dismissed with prejudice because he
cannot plead that Integrity actually knew his age when it rejected his
application for employment. The Plaintiff does not plead that Integrity or
Defendant Cindy Heindel, the Vice President of Human Resources, had
actual knowledge of his age. Rather, the Complaint suggests that the
Defendants were aware of the Plaintiff’s age, based on the inclusion of the
year he graduated from college (1989) on a business networking site.
Integrity contends that Plaintiff never pled that it or Heindel actually
reviewed his LinkedIn1 profile, had knowledge of the date he graduated
from college, or that Integrity actually determined the Plaintiff’s age.
Although Integrity claims that Heindel could not have reviewed his
LinkedIn profile, the Plaintiff alleges in his Response that during telephone
interviews, Heindel did inquire about and confirm the year that Plaintiff
and the candidate who was selected for the position each earned their
degrees.

According to the Complaint, the Plaintiff’s interview was

LinkedIn, which launched on May 5, 2003, describes itself as the
“World’s Largest Professional Network,” with over 135 million members
in over 200 countries and territories as of November 3, 2011. See
www.linkedin.com/about.
1

4

conducted in February 2010. It is not difficult to determine that someone
who graduated from college in 1989 probably was over the age of 40 in
2010. Given the Plaintiff’s pro se status, the Court concludes that this is
enough to place Integrity on notice that he is subject to the protection of
the laws against age discrimination. The Plaintiff has also alleged that the
candidate selected for the position obtained his degree in 1994. A person
who was 22 at that time would have been under 40 in 2010. At this stage,
the pro se Plaintiff has also sufficiently alleged that employees outside the
protected class were treated more favorably.
Integrity also alleges the Plaintiff’s retaliation claims pursuant to Title
VII (Count II), § 1981, and the IHRA should be dismissed because the
Plaintiff does not allege: (1) that Integrity actually was aware of his
“protected activity;” and (2) the nature of his “protected activity.” In his
Complaint, the Plaintiff alleges that around October 2009, he became
aware that an internet search “would provide specific information as to the
Plaintiff, the prior action, the Defendants, and the nature of this case,”
which the Plaintiff refers to as his “protected conduct.” See Compl. ¶ 20.

5

The Plaintiff further alleges he “knows that it is highly common practice
for employment recruiters, human resources professionals, hiring managers,
and other related parties to ‘Google’ potential employees or job applicants.”
See Compl. ¶ 20.
Integrity contends that, based on this subjective assertion, the
Plaintiff “presumes” every employer where he has applied for a job has
learned of his protected conduct, “and in some cases would likely use it as
an unlawful disqualification or discount factor as to his candidacy.” See
Compl. ¶ 20. Integrity further asserts that Plaintiff’s Complaint references
an exhibit which arguably suggests that Plaintiff filed a lawsuit against
Nationwide Mutual Insurance Company. It contends that Plaintiff has not
identified any “protected conduct” and that his conclusion that he engaged
in such conduct is not enough to defeat a motion to dismiss.
The Plaintiff claims that although Integrity denies using the internet
to research job applicants like him, it does not assert that it was not made
aware of the alleged protected conduct by other means. The Plaintiff
further suggests that Integrity’s employment agent was somewhat aware of

6

his previous protected conduct.
Integrity correctly argues that the allegations in the Plaintiff’s
Complaint which pertain to “protected conduct” are highly speculative. It
appears that Plaintiff is alleging that any potential employer could possibly
have learned of the Plaintiff’s “protected conduct” by conducting an
internet search and refused to hire him for that reason. It is unclear
whether the Plaintiff has any basis for believing this other than a subjective
belief. However, in considering a claim which the defendants argued made
no sense and was based on “vague aspersions, conclusory statements, and
supposed ‘wrongful’ conduct,” the Seventh Circuit observed that those are
matters to be considered at the summary judgment stage and not when
ruling on a motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 213
(7th Cir. 2011). This is particularly true given the Plaintiff’s pro se status,
The Court will Deny Integrity’s Motion to dismiss the retaliation claims.
Additionally, Integrity contends that Plaintiff’s claims it violated the
IHRA (Counts VII and VIII) should be dismissed because Plaintiff failed
to exhaust his administrative remedies under the IHRA and Integrity is not

7

an employer under the IHRA.
Integrity asserts that Plaintiff’s charge of discrimination, which is
attached to the Complaint, was cross-filed with the EEOC and the Illinois
Department of Human Rights. See Compl. ¶ 4. However, based on
Exhibit A of the Complaint, Integrity alleges that Plaintiff’s charge of
discrimination was cross-filed with the Wisconsin Equal Rights Division
because Integrity is a Wisconsin employer and Plaintiff was applying for a
job in Wisconsin. Therefore, Integrity argues that Plaintiff cannot pursue
claims under the IHRA because of his failure to exhaust remedies.
In response, the Plaintiff claims that Plaintiff filed the original charge
with the Chicago, Illinois office of the EEOC. Subject to its own discretion,
the EEOC chose to transfer the matter to the Milwaukee, WI office for
investigation. The Plaintiff points to 775 ILCS 5/7A-102( A-1)(1), which
provides in part, “If a charge is filed with the Equal Employment
Opportunity Commission (EEOC) within 180 days after the date of the
alleged civil rights action, the charge shall be deemed filed with the
Department on the date filed with the EEOC.” Based on this language, the

8

Plaintiff contends the charge was automatically filed. The IHRA does not
require that a charge actually be investigated by the Illinois Department of
Human Rights.
The Court is unable at this time to conclude that Plaintiff’s claims
under the IHRA are deficient and subject to dismissal.
Based on the foregoing, Integrity’s Motion to dismiss will be Denied.
II. Motion of Defendant Grange Mutual Casualty Company
In support of its Motion, Defendant Grange Mutual Casualty
Company (“Grange”) has adopted and incorporated by reference each of
the arguments set forth in Integrity’s Memorandum in support of its
Motion to Dismiss.

To the extent those arguments are incorporated,

Grange’s Motion is Denied for the same reasons.
Grange also asserts it should be dismissed with prejudice because the
Plaintiff has not and cannot plead that Grange was his prospective
employer. It cannot be liable for alleged employment discrimination by
Integrity solely because the Plaintiff alleges that Grange is Integrity’s owner
and/or successor in interest. Each statute on which the Plaintiff relies

9

requires that Grange act as the employer to have liability for employmentrelated decisions.
Grange contends that Plaintiff does not plead any facts tending to
show that it was involved in Integrity’s decision to reject the Plaintiff’s
employment application or that Grange otherwise acted as an “employer.”
It claims that Plaintiff alleges only that Grange is Integrity’s owner and/or
successor in interest and that one of its employees was involved in the
EEOC investigation. See Compl. ¶¶ 8, 39. The allegation that Grange
monitored and/or controlled Integrity’s activities is, without more, a naked
legal conclusion that is not sufficient to withstand a motion to dismiss.
Additionally, the Plaintiff’s claims against Grange for violation of the
ADEA (Count I), Title VII (Count II), and the IHRA ( Counts VII and
VIII) should be dismissed because the Plaintiff failed to name Grange in his
EEOC charge. “[A] parent organization not named in the plaintiff’s EEOC
charge must be dismissed from the suit unless the plaintiff can show that
the parent had notice of the claim against it, as opposed to its subsidiary,
and had an opportunity to conciliate on its own behalf.” Olsen v. Marshall

10

& Ilsley Corp., 267 F.3d 597, 604 (7th Cir. 2001). The court in Olsen
determined that the fact that the plaintiff showed that the parent
corporation had notice of the claim against the subsidiary and participated
in the administrative proceedings on the subsidiary’s behalf were alone
insufficient to create a factual dispute to defeat summary judgment. See id.
In response, the Plaintiff alleges that he first recognized the name of
Grange executive officer and in-house attorney, Beth W. Murphy, when he
saw her name on the “Right To Sue” letter from the EEOC. The Plaintiff
claims that he has recognized the “substantial connections” between
Integrity and Grange since the EEOC charge was filed. He contends they
are “integrated enterprises,” and Grange has been on notice since the charge
was filed. Moreover, a party not named in an EEOC charge may in some
circumstances still be subject to suit. This exception to the general rule
applies when “an unnamed party has been provided with adequate notice
of the charge, under circumstances where the party has been given the
opportunity to participate in the conciliation proceedings aimed at
compliance.” See Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124,

11

126 (7th Cir. 1989) (citation omitted).
The Plaintiff claims that Murphy was in position to know of the
integration between the organizations. Moreover like Integrity, Grange had
opportunities to participate in negotiations or conciliation yet refused those
opportunities.
Although the significance, if any, of Grange’s role in this case is not
entirely clear, the Court concludes that Plaintiff has alleged sufficient facts
at this stage to withstand the motion to dismiss. Because it is premature
to resolve the factual disputes at this stage of the litigation, Grange’s
motion will be Denied.
III. Motion to Dismiss of Defendant Cindy Heindel
The Plaintiff has asserted claims against Heindel for retaliation in
violation of 42 U.S.C. § 1981 (Count V) and the Illinois Human Rights Act
(Count VIII), and age discrimination in violation of the IHRA (Count VII).
Heindel alleges that the claims must be dismissed under Rule 12(b)(2)
because the Court lacks personal jurisdiction over her. Heindel claims she
does not have the systematic and routine contacts with Illinois to warrant

12

general jurisdiction. Moreover, her lone telephone call to the Plaintiff, in
response to the submission of his resume for a job in Wisconsin, is not
enough for this Court to obtain specific jurisdiction over Heindel.
Heindel has submitted her Declaration as an Exhibit to her Motion.
A court may receive affidavits in considering a motion to dismiss. See
Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.
1983). When there is a challenge to personal jurisdiction, the plaintiff
bears the burden of establishing its basis for personal jurisdiction.
However, the plaintiff is entitled to the benefit of the doubt if comparable
levels of proof are advanced, whether by affidavit or another means. See
id., see also International Steel Co. v. Charter Builders, Inc., 585 F. Supp.
816, 819 (S.D. Ind. 1984).

A plaintiff’s allegations as to personal

jurisdiction are accepted as true, except where they are refuted by a
defendant’s undisputed affidavits. See Swanson v. City of Hammond, Ind.,
411 F. App’x 913, 915 (7th Cir. 2011); see also International Steel Co.,
585 F. Supp. at 819 (“If the party challenging jurisdiction provides
affidavits in support of the motion to dismiss, the non-movant may not

13

simply rest on the allegations of the complaint”). Any factual disputes in
the affidavits are resolved in favor of the plaintiff.

See Tamburo v.

Dworkin, 601 F.3d 693, 700 (7th Cir. 2010).
The Plaintiff asserts that the Court has specific jurisdiction over
Heindel pursuant to 735 ILCS 5/2-209(1), (2) and (7). The Illinois’ longarm statute stretches to the extent permitted by the due process clauses of
the United States and Illinois Constitutions. See 735 ILCS 5/2-209(c).
Heindel contends that Plaintiff cannot establish that subjecting her to
personal jurisdiction in this Court is consistent with the due process clauses
of either Constitution.
Heindel further asserts that, even if the Court has personal
jurisdiction, the Plaintiff’s claims should be dismissed under Rule 12(b)(6)
because the IHRA does not provide for individual liability for age
discrimination or retaliation and Plaintiff has failed to allege a retaliation
claim against Heindel in violation of § 1981. Therefore, Heindel contends
the claims against her must be dismissed with prejudice.
“The nature of the defendant’s contacts with the forum state

14

determines the propriety of personal jurisdiction and also its scope–that is,
whether jurisdiction is proper at all, and if so, whether it is general or
specific to the claims made in the case.” Tamburo, 601 F.3d at 701. In
order for a court to have general personal jurisdiction over a defendant, the
individual must have “continuous and systematic” contacts with the state,
even if the action is not related to those contacts. See id. The threshold is
high, to the extent that the contacts must be sufficiently extensive so as to
approximate physical presence. See id. Occasional visits are not enough for
general jurisdiction. See id.
As for specific personal jurisdiction, the defendant’s contacts with the
state must directly pertain to the challenged conduct or transaction. See
id. at 702. “Specific personal jurisdiction is appropriate where (1) the
defendant has purposefully directed his activities at the forum state or
purposefully availed himself of the privilege of conducting business in that
state, and (2) the alleged injury arises out of the defendant’s forum-related
activities.” Id. The exercise of such jurisdiction must also be consistent
with traditional notions of fair play and substantial justice as required by

15

the Fourteenth Amendment’s Due Process Clause. See id.
Heindel further asserts that even if Illinois courts had personal
jurisdiction over her, the Plaintiff’s claims are barred by the fiduciary shield
doctrine because her alleged conduct was motivated by her employment
interests and not her personal interests. See Rollins v. Ellwood, 141 Ill.2d
244, 280 (1990). Pursuant to Illinois’ due process clause, it would be
“unfair and unreasonable” to assert personal jurisdiction over an individual
in such circumstances. See id.
Heindel asserts that, as Integrity’s Vice President of Human
Resources, she was assigned to contact candidates who might qualify for a
Vice President of Claims job opening to determine if they warranted an
interview at the company’s Wisconsin headquarters. Pursuant to this
directive, Heindel reviewed resumes and conducted telephone conferences
with certain applicants to determine if Integrity should invite an applicant
to Wisconsin for an interview.

Heindel conducted a pre-interview

telephone conference with the Plaintiff in or around February 2010. She
rejected the Plaintiff as a viable candidate to continue with Integrity’s

16

interview process. Heindel states that she performed these duties on behalf
of Integrity and did not have any personal interest in the selection of
candidates to continue with the interview process. Moreover, Heindel does
not own any shares or have any ownership interest in Integrity. Because
her one telephone call to the Plaintiff was motivated entirely by her
employment situation and not her personal interests, Heindel alleges the
claims against her should be dismissed pursuant to Rule 12(b)(2).
The Plaintiff claims that he interacted with Heindel directly, in
addition to her employment agents. He asserts that Heindel’s contacts with
the State of Illinois have been credibly pled as being more numerous and
significant than she acknowledges. The Plaintiff asserts that her contacts
with Illinois consist of more than a single telephone call to him in February
2010. These facts have not been stipulated by the parties. The Plaintiff
asserts that the extent of Heindel’s contacts with Illinois is a factual
question which is yet to be resolved. He contends that it is inappropriate
for a Defendant to insert extrinsic facts into the analysis at this stage of the
proceedings. Therefore, the Plaintiff asserts that Heindel’s argument is

17

without merit.
Heindel has submitted a Declaration under penalty of perjury.
According to the Declaration, Heindel’s contacts with Illinois are extremely
limited. Heindel has met her burden by refuting the Plaintiff’s allegations.
The Plaintiff has essentially rested on the allegations in his Complaint,
which is insufficient to defeat Heindel’s Motion once she has produced a
Declaration.

Accordingly, the Court concludes that general personal

jurisdiction does not lie in Illinois.
The Court further holds as a matter of law that a single telephone
interview with an Illinois citizen is insufficient to establish specific personal
jurisdiction based on the claims in this case. Based on the allegations of the
Complaint and record, the Court concludes that the exercise of such
jurisdiction does not comport with traditional notions of fair play and
substantial justice and is contrary to the United States and Illinois
Constitutions. The Court further notes that based on the current record,
it appears Heindel is also protected by the fiduciary shield doctrine.
Because Heindel submitted a Declaration detailing the extent of her

18

contacts with Illinois, the Plaintiff cannot withstand the Motion to Dismiss
by simply pointing to the allegations of his Complaint. The Court will
Allow Heindel’s Motion to Dismiss for lack of personal jurisdiction.
The Plaintiff has requested leave to amend his Complaint in the event
of the dismissal of claims. Rule 15(a)(2) of the Federal Rules of Civil
Procedure provides that a “court should freely give leave when justice so
requires.” However, the Court should not allow a plaintiff to amend his
complaint when doing so would be futile. See Moore v. State of Ind., 999
F.2d 1125, 1128 (7th Cir. 1993). Because it would obviously be futile in
this case, the Court will Deny the Plaintiff’s Motion for Leave to Amend his
Complaint as to the claims against Heindel.
IV. Motion to Dismiss of Criterion Executive Search and Tingley
Defendants Criterion Executive Search, Inc. and Michael Tingley, an
executive recruiter for Criterion, have filed a motion to dismiss. They claim
they lack sufficient contacts with Illinois and seek dismissal pursuant to
Rule 12(b)(2). Alternatively, the Defendants seek dismissal for failure to
state a claim pursuant to Rule 12(b)(6).

19

(A)
The Defendants claim that Plaintiff has not alleged any basis for
personal jurisdiction over Criterion or Tingley. In paragraph 10 of the
Complaint, the Plaintiff alleges that Criterion is based in Tampa, Florida
and conducts searches for various positions throughout the United States.
In paragraph 11, he asserts that Tingley is a Criterion employee based out
of Cincinnati.
In support of the motion to dismiss for lack of personal jurisdiction,
relying on the affidavit of its Founder and President, Richard James,
Criterion states it is an employment agency that is incorporated under the
laws of Florida and has its principal place of business there. Criterion is not
licensed, authorized, or registered to do business in Illinois. Criterion does
not have an office in Illinois and does not own or rent any personal
property in Illinois. It has no Illinois employees and does not conduct
business in Illinois.
Tingley has also submitted an affidavit. According to the affidavit,
Tingley works for Criterion at an office in Cincinnati, Ohio, where he has

20

worked for 16 years. Tingley does not regularly work in Illinois and has no
current Illinois clients. He states that he has not had any clients in Illinois
since approximately 2007. His only contact with Illinois since 2009 has
been the limited contact initiated by the Plaintiff when the Plaintiff called
him. After the initial phone call, Tingley states that he and the Plaintiff
exchanged emails approximately two times and talked three times on the
phone.
In his Response, the Plaintiff asserts that he first met Tingley in 2001
when Tingley worked at another company and advertised a position with
an Indiana entity. He claims that the two subsequently maintained a
friendly professional relationship. Periodically, the Plaintiff would call the
Defendant to discuss opportunities or industry happenings. He claims that
he provided “leads” as to possible jobs or potential candidates several times
from 2004 to 2011. The Plaintiff further asserts that Tingley also worked
for the Plaintiff’s prior employer and had some interactions pertaining to
the general nature of the organization or jobs which Tingley was trying to
fill. In December of 2007, Tingley contacted the Plaintiff to ask about a

21

candidate, an Illinois resident, who Criterion was considering for a role.
The Plaintiff claims that this latter assertion seems to contradict the
pleadings and/or affidavit of Tingley, even though Tingley stated that he
last had an Illinois client in approximately 2007.
The Plaintiff emphasizes that Criterion’s website, www.cesfl.com,
describes the company as a “national executive staffing and recruitment
firm.” The Plaintiff claims that, when he viewed the website, it included 85
positions, 22 of which were located outside of Florida though none from
Illinois. The Plaintiff claims that he performed further internet searches,
and discovered at one website two active job searches by Criterion for
positions located in Illinois. On another website, the Plaintiff discovered
another Illinois-based position which referenced Criterion’s President as the
contact.

The Plaintiff contends that this information contradicts

Criterion’s assertion that it does not do regular business in Illinois. In a
Response [d/e 32], the Defendants claim that the contact for one of these
Illinois positions was a Pennsylvania company. As for the other two Illinois
positions, Criterion states that it does not recall who was its client.

22

According to the Affidavit of Richard James, both of those postings are over
two years old and are not currently open.
The Plaintiff filed a Supplemental Response [d/e 31] to the Motion
to Dismiss, wherein he has included an attachment referencing an Illinois
Commercial Underwriting Officer position posted on another website by
Criterion and/or Tingley. The Plaintiff claims that this information was
likely posted in the last four to six months, which he alleges is inconsistent
with statements offered in support of the motion to dismiss. The Plaintiff
filed another Supplemental Response [d/e 33], wherein he claims that on
March 23, 2012, he found another Chicago-based position advertised for
Criterion.
Based on these assertions and the other factual allegations in the
Complaint, the Plaintiff claims there is an insufficient basis to dismiss the
claims against Criterion for lack of personal jurisdiction. Moreover, he
asserts that Criterion used the websites in question to advertise the position
at issue (with Integrity and/or Grange) throughout the country.
The Defendants contend that none of the exhibits relied on in the

23

Plaintiff’s Supplements establish that Criterion or Tingley were doing
business in Illinois. Rather, the documents show only that they posted
positions that were available in Illinois.

They contend that in most

instances, Criterion and/or Tingley had little or no contact with anyone in
Illinois. In Tingley’s affidavit attached to the Defendants’ Response, he
states that his client for the Commercial Underwriting Officer referenced
by the Plaintiff was Colony Specialty Insurance Group, which is based in
Richmond, Virginia.

In approximately August 2011, Tingley received

assignments from Colony for positions in Chicago, Illinois and Los Angeles.
He received only resumes for the Chicago position and did not conduct any
interviews. Tingley states that Colony is not one of his current clients. The
Defendants claim that Tingley did not have contact with anyone in Illinois
for the posted job. Thus, the Defendants contend that the Plaintiffs’
Supplement does not establish that Defendants were engaging in business
of a continuous or systematic nature in Illinois.
In asserting that their contacts are not sufficient to establish general
jurisdiction, Criterion and Tingley allege they do not have continuous and

24

systematic contacts with Illinois. Criterion claims that it has no office or
employees in Illinois and rarely does any business in Illinois. Tingley does
not regularly do business in Illinois.

Relying on their affidavits, the

Defendants claim that their contacts with Illinois have been very limited.
They cite uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421 (7th Cir.
2010), wherein the Seventh Circuit determined that although the GoDaddy
Group (“GoDaddy”), which operates the well-known domain registration
site GoDaddy.com, had “extensive and deliberate” contacts with Illinois,
the district court correctly determined that it was not subject to general
jurisdiction. See id. at 423, 426. Criterion’s and Tingley’s contacts with
Illinois are much more limited than were GoDaddy’s.
The Court concludes that the actions of an employment agency
and/or one of its employees of advertising a small number of jobs located
in Illinois is insufficient to subject those Defendants, who do not regularly
do business in Illinois, to general personal jurisdiction. It is plainly evident
from the Complaint and the Parties’ subsequent filings, including the
affidavits submitted with the Defendant’s Motion and the Parties’ various

25

Supplements, that Criterion and Tingley lack the requisite continuous and
systematic contacts with Illinois for general personal jurisdiction. Given
these extremely limited contacts, the Court concludes that neither Criterion
nor Tingley is subject to general personal jurisdiction in Illinois.
(B)
As for specific jurisdiction, Criterion and Tingley claim it is not “fair
and reasonable” to subject them to Illinois courts to answer the Plaintiff’s
claim. “The due process clause will not permit jurisdiction to be based on
contacts with the forum that are random, fortuitous, or attenuated.” uBid,
623 F.3d at 426. The facts as alleged by Plaintiff show that he made a
phone call from Illinois to Tingley in Ohio. There were a few follow-up
calls and emails. There is no contract alleged between the Plaintiff and
Criterion or Tingley. Rather, the Plaintiff claims that they were working
with Integrity, who was in Wisconsin. According to the Defendants, the
limited number of phone calls and emails are not sufficient to establish
specific jurisdiction.
In determining that GoDaddy was subject to specific jurisdiction, the

26

Seventh Circuit emphasized that the company had “thoroughly,
deliberately, and successfully exploited the Illinois market.” uBID, 623
F.3d at 427. GoDaddy has had an extensive national advertising television
campaign, including several years of Super Bowls ads, and has made
significant national sales. See id. Its marketing, which has included venue
advertising and celebrity and sports sponsorships, has reached hundreds of
thousands of Illinois residents, which has resulted in millions of dollars of
annual revenue to GoDaddy. See id. Accordingly, the Court concluded
that these contacts were enough to establish the requisite minimum
contacts with Illinois for claims related to those contacts. See id.
The court rejected GoDaddy’s attempts to distance itself from Illinois
by describing the market as one among many in a national advertising
campaign.

See id. at 428.

The advertising campaign was obviously

designed to reach as many Americans as possible, including the 13 million
residing in Illinois. See id. The court determined that this purposeful
availment of the Illinois market subjected GoDaddy to personal jurisdiction
for any claim arising from its business activities that reach into the state.

27

See id. at 429.
The record establishes that Plaintiff contacted Tingley at Criterion
regarding a position at Integrity. Tingley and the Plaintiff had a few followup emails and phone calls. The Parties did not enter into a contract. The
Plaintiff has not pointed to any information relating to this claim which
would tend to show that Tingley’s contacts with Illinois are any more
extensive than those few correspondences. Over the years, Criterion has
posted thousands of jobs on the internet. A very small percentage of these
jobs have been based in Illinois or sought only Illinois candidates. In most
of those cases, Criterion’s clients have been located in states other than
Illinois. The Court is unable to conclude that these Defendants have
“thoroughly, deliberately, and successfully exploited the Illinois market.”
See uBID, 623 F.3d at 427.
Based on the information in the record, the Court holds as a matter
of law that Criterion’s and Tingley’s limited contacts with Illinois are not
sufficiently thorough and deliberate to establish the necessary minimum
contacts for claims that are related to those contacts. The Court will Allow

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the Motion of Criterion and Tingley to dismiss for lack of personal
jurisdiction.
The Plaintiff has requested leave to amend his Complaint in the event
of dismissal of his claims. The Motion to for Leave to Amend as to
Defendant Tingley will be Denied. The Court concludes that any attempt
by the Plaintiff to amend his Complaint as to the individual Defendant
would obviously be futile.2 Because futility as to Criterion is a closer
question, the Plaintiff will be given until May 29, 2012, to amend his
Complaint as to any claims against Criterion.
V. Motion for Sanctions and Motion to Strike
The Plaintiff has filed a Motion requesting that the Court sanction
Criterion, Tingley, and Counsel for those Defendants. He alleges the
Defendants have filed pleadings which have contained information that is
false. The pleadings were supported by affidavits from Tingley and Richard
James, Criterion’s president. The Plaintiff asserts that these affidavits have
It appears that Tingley, like co-Defendant Heindel, may also be
protected from suit pursuant to the fiduciary shield doctrine because the
nonresident’s contacts with Illinois pursuant to an employment
relationship do not subject him to suit. See Rollins, 141 Ill. at 280.
2

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also included information that was not truthful.
Given its ruling on the Motion to Dismiss filed by Criterion and
Tingley, the Court is unable to find that the Defendants have filed false
pleadings or affidavits. The Court concluded that Criterion’s and Tingley’s
positions that they conducted very limited business in Illinois were wellsupported. Accordingly, the Motion for Sanctions will be Denied.
The Plaintiff has filed a Motion to Strike portions of the Opposition
to the Motion for Sanctions filed by Criterion and Tingley. This Motion
will be Denied as Moot.
Ergo, the Motion to Dismiss of Defendant Integrity Mutual Insurance
Company [d/e 8] is DENIED.
The Motion to Dismiss of Defendant Grange Mutual Casualty
Company [d/e 11] is DENIED.
The Motion to Dismiss of Defendant Cindy Heindel for Lack of
Personal Jurisdiction [d/e 16] is ALLOWED.
The Motion to Dismiss of Defendants Criterion Executive Search of
Florida, Inc., and Michael Tingley for Lack of Personal Jurisdiction [d/e 24]

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is ALLOWED.
The Claims asserted against Defendants Heindel and Tingley are
DISMISSED WITH PREJUDICE.
The Plaintiff’s Motion for Leave to file an Amended Complaint as to
Defendant Heindel [d/e 21] is DENIED.
The Plaintiff’s Motion for Leave to file an Amended Complaint
against Defendants Tingley and Criterion [d/e 29] is ALLOWED IN PART
and DENIED IN PART.

The Motion is DENIED as to Tingley and

ALLOWED as to Criterion. Any Amended Complaint is due no later than
May 25, 2012.
The Plaintiff’s Motion for Sanctions against Defendants Criterion and
Tingley and their Counsel, David Holmes, [d/e 35] is DENIED.
The Plaintiff’s Motion to Strike Portions of the Defendants’
Opposition to the Motion for Sanctions [d/e 38] is DENIED AS MOOT.
Any other pending Motions are DENIED AS MOOT.
ENTER: April 26, 2012
FOR THE COURT:

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s/Richard Mills
United States District Judge

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