Bank of Montreal v. SK Foods, LLC

Filing 113

MEMORANDUM Opinion and Order, Signed by the Honorable Joan B. Gottschall on 9/30/2011.(ea, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BANK OF MONTREAL,
Plaintiff,
v.
SK FOODS, LLC
Defendant.

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Case No. 09 C 3479
Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
In June 2009, Bank of Montreal (“BMO”),1 as an administrative agent acting on behalf of
certain lenders, brought this diversity suit against SK Foods, LLC (“SK Foods”), seeking to
collect an outstanding balance due to the lenders under a credit agreement between the lenders,
SK Foods, SK Foods’ subsidiaries, and other SK Foods-related entities, and to foreclose on
collateral held by the lenders under the same agreement. On September 28, 2010, this court
entered a judgment in favor of BMO and against SK Foods for over $128,000,000. (See ECF
No. 81.) On December 23, 2010, BMO initiated supplemental proceedings in this court by filing
a Citation to Discover Assets (the “Citation”) under 735 Ill. Comp. Stat. 5/2-1402 as to a third
party, Cary Scott Collins, not named in the underlying action, to locate SK Foods’ assets to
satisfy the judgment against SK foods.2 (See Citation to Discover Assets, Dec. 23, 2010, ECF
No. 83.)

1

The court employs the acronym used by Bank of Montreal in referring to itself in its submissions to the

court.
2

See Dexia Crédit Local v. Rogan, 629 F.3d 612, 622 (7th Cir. 2010) (“The service of a citation to discover
assets initiates supplemental proceedings.”) (citing 735 ILL. COMP. STAT. 2-1402(a) and Cacok v. Covington, 111
F.3d 52, 53 (7th Cir. 1997)).

Now before the court are two motions arising from the supplemental proceedings.
Collins moves to dismiss and/or quash the Citation for lack of personal jurisdiction. (See ECF
No. 94.)

As part of his reply memorandum in support of his motion to dismiss, Collins

submitted an affidavit containing statements that BMO vigorously contests. (See ECF No. 1011.) BMO has filed a motion in limine asking the court to strike the affidavit. (See ECF No. 105.)
For the reasons set out below, the court denies both Collins’ motion to dismiss and/or
quash the Citation and BMO’s motion in limine.
II.

BACKGROUND3

Collins came to this court’s and BMO’s attention in September 2010 when, through SK
Foods’ counsel, he submitted an affidavit in the action underlying this supplemental proceeding.
(See Decl. of Cary S. Collins in Resp. to Decl. of Lawrence Mizera, Sept. 22, 2010, ECF No. 78
(hereinafter “Collins Decl.”).) The caption of the affidavit clearly indicated that it was prepared
for submission to the United States District Court for the Northern District of Illinois and for the
court’s consideration in the underlying breach of contract case. (See id.) BMO had filed the
underlying suit against SK Foods seeking to collect over $190,000,000 that BMO had loaned to
SK Foods, LP4 and RHM Industrial/Specialty Foods, Inc. (collectively, the “Borrowers”) under a
credit agreement.5 SK Foods pledged substantially all of its assets to BMO as a guarantor to

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When the issue of personal jurisdiction is presented on the basis of written materials, the plaintiff need only
make a prima facie showing of jurisdictional facts. Any factual disputes are resolved in BMO’s favor. See Tamburo
v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2003) (In deciding a motion to dismiss for lack of personal jurisdiction on
written submissions alone, “[the court] take[s] as true all well-pleaded facts alleged in the complaint and resolve any
factual disputes in the affidavits in favor of the plaintiff.”).
4

SK Foods, LP is a California limited partnership in which Salyer had a controlling interest prior to its
bankruptcy and liquidation in 2009. As an SK Foods, LP creditor, BMO initiated the limited partnership’s
bankruptcy through petition in May 2009.
5

For a more complete recitation of the facts of the underlying case, see the court’s prior opinions at Bank of
Montreal v. SK Foods, LLC, NO. 09 C 3479, 2009 WL 3824668 (N.D. Ill. Nov. 13, 2009), and Bank of Montreal v.
SK Foods, LLC, No. 09 C 3479, 2010 WL 3385534 (N.D. Ill. Aug. 19, 2010).

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secure the loans. In April 2009, after the Borrowers defaulted on the credit agreement and failed
to satisfy their debts despite the expiration of multiple forbearance periods, BMO demanded
payment from the Borrowers and from SK Foods as a guarantor. After both the Borrowers and
SK Foods refused to pay, BMO brought a breach of contract suit in this court in June 2009. The
court granted BMO partial summary judgment in its favor. See Bank of Montreal v. SK Foods,
LLC, No. 09 C 3479, 2010 WL 3385534, at *4 (N.D. Ill. Aug. 19, 2010). In September 2010, the
court entered judgment awarding BMO over $128,000,000. (See ECF No. 81.)
Just before the court entered judgment, Collins voluntarily submitted, through SK Foods’
counsel, his affidavit offering statements in his capacity both as a personal and business
accountant for F. Scott Salyer (a party with a controlling interest in SK Foods) and as an officer
and director of Cedenco, a New Zealand firm alleged by BMO to be a foreign subsidiary of SK
Foods at all times relevant to this proceeding.6 (See Collins Decl.) In the affidavit, Collins gave
statements concerning Cedenco’s and SK Foods, LP’s finances in support of an affirmative
defense SK Foods raised, and which the court rejected, in the underlying action. He also stated
that “[i]f called upon to testify in this case, [he] could competently testify” regarding his
statements. (Id.)
After submitting his affidavit, Collins again came to the attention of BMO via a federal
criminal investigation of Salyer and various adversary proceedings arising from the bankruptcy
of SK Foods, LP. Evidence drawn from the investigation and proceedings suggests that after
BMO filed suit in this court against SK Foods, Salyer transferred SK Foods’ assets overseas;
these assets would have been subject to this court’s judgment. Based on this evidence, BMO
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There is some dispute between the parties as to where Collins was situated within the SK Foods corporate
structure and the timeframe during which Collins was a director and officer. There is also a dispute as to who
controls which SK Foods-related entities. These disputes, however, are immaterial to the resolution of these
motions.

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came to suspect that Collins aided Salyer in transferring money overseas to avoid a judgment in
this court. Accordingly, BMO filed its Citation to conduct an examination of Collins to discover
any assets to which BMO might be entitled under the judgment. In particular, BMO alleges here
that its submissions in support of its Citation show, among other things, that Collins carried out
certain of these transfers, may know where the transferred assets are, and may still have SK
Foods’ assets in his control.
Collins admits that he has some documents responsive to the document request BMO
made pursuant to the Citation.

However, after being served the Citation at his home in

California, Collins mailed this court and BMO’s counsel a letter challenging this court’s personal
jurisdiction over him. (See ECF No. 88.) After BMO notified him that the challenge was not
properly before the court, (see ECF No. 94-1,) Collins hired local counsel, who filed the motion
to dismiss for lack of personal jurisdiction.
In his motion to dismiss, Collins notes that he is an accountant living and working in
California. He has not physically been in Illinois in seventeen years, has no clients in Illinois,
has not conducted any business in Illinois, and does not own any property in Illinois. In an
affidavit he submitted with his motion, he states that the affidavit he submitted in the underlying
litigation was executed in California and that he did not intend, by its submission, to submit
himself to personal jurisdiction in Illinois. (Collins’ Mot. to Dismiss and/or Quash Citation to
Discover Assets to a Third Party, Ex. B, ¶ 3, ECF No. 94-1.)
I.

LEGAL STANDARD

Rule 69(a)(1) of the Federal Rules of Civil Procedure provides that the procedure in
supplemental proceedings for enforcing federal court judgments “must accord with the procedure
of the state where the court is located, but a federal statute governs to the extent it applies.”

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Here, as no federal statute is applicable, the court’s supplemental proceeding is governed by the
relevant provisions of Illinois law. Section 2-1402(a) of the Illinois Code of Civil Procedure and
Illinois Supreme Court Rule 277(a) allow a judgment creditor to bring a supplemental
proceeding against any party to (a) question that party under oath about the whereabouts of
assets that can be used to satisfy the judgment, and (b) compel application of any discovered
assets towards satisfaction of the judgment. 735 Ill. Comp. Stat. 5/2-1402; Ill. Sup. Ct. R.
277(a); Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1223 (7th Cir. 1993). Because
proceedings “to enforce judgment are meant to be swift, cheap, and informal . . . Rule 69 [of the
Federal Rules of Civil Procedure was not] meant to put the judge into a procedural straightjacket
whether of state or federal origin.” Star Ins. Co. v. Risk Mktg. Grp. Inc., 561 F.3d 656, 661 (7th
Cir. 2009) (citing Ruggiero, 994 F.2d at 1226) (internal quotation marks omitted). Nevertheless,
this court may analogize this supplemental proceeding to a regular civil proceeding to the extent
such a comparison is helpful. Ruggiero, 994 F.2d at 1226 (treating supplementary proceedings
analogously with regular civil proceedings for purposes of appealability). This court chooses to
do so and adopts the familiar standard for deciding jurisdictional issues.
Accordingly, the plaintiff bears the burden of demonstrating jurisdiction. Tamburo v.
Dworkin, 601 F.3d 693, 700 (7th Cir. 2010) (citing Purdue Research Found. v. SanofiSynthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)). “In addition to the well-pleaded facts in
the complaint, the court may also consider facts set forth in affidavits.” MacNeil Auto. Prods.
Ltd. v. Cannon Auto. Ltd., No. 08 C 139, 2011 WL 4435619, at *2 (N.D. Ill. Sept. 22, 2011)
(citing Tamburo, 601 F.3d at 700 (“At this stage . . . we take as true all well-pleaded facts alleged
in the complaint and resolve any factual disputes in the affidavits in favor of the plaintiff.”);
Wendt v. Handler, Thayer & Duggan, LLC, 613 F. Supp. 2d 1021, 1027 (N.D. Ill. 2009) (“In

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determining whether a prima facie case has been established, the Court can consider materials
such as affidavits.” (citing Purdue, 338 F.3d at 782)).

When the movant’s jurisdictional

challenge is based on the submission of written materials alone, as it is here, the party asserting
personal jurisdiction need only make out a prima facie case of personal jurisdiction. See uBID,
Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010) (citing Tamburo, 601 F.3d at
700, and Purdue, 338 F.3d at 782). If the movant has submitted evidence such as affidavits in
support of the motion to dismiss, then the plaintiff “must go beyond the pleadings and submit
affirmative evidence supporting the exercise of jurisdiction.” Purdue Research, 338 F.3d at 78283. The plaintiff, however, in making out a prima facie case, is entitled to resolution of all
relevant factual disputes in his or her favor and to a liberal reading of the record. Id. at 782;
Tamburo, 601 F.3d at 700 (applying the prima facie standard and taking as “true all well-pleaded
facts alleged in the complaint and resolv[ing] any factual disputes in the affidavits in favor of the
plaintiff”); see also C.S.B. Commodities, Inc. v. Urban Trend (HK) Ltd., 626 F. Supp. 2d 837,
843 (N.D. Ill. 2009) (“The Court resolves factual disputes in the pleadings and affidavits in favor
of the party asserting jurisdiction, but takes as true those facts contained in defendant’s affidavits
that remain unrefuted by the plaintiff.”).
III.
A.

ANALYSIS

BMO’s Motion in Limine
In its motion in limine, BMO expresses concern that the court will be led astray by

factual assertions Collins made for the first time in an affidavit attached to his reply
memorandum in support of his motion to dismiss. As explained above, the court will resolve any
factual disputes in BMO’s favor. However, since the court finds (as explained below) that
Collins’ submission of an affidavit to this court in September 2010 subjects him to this court’s

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jurisdiction, there are no material factual disputes. As a practical matter, this fact moots BMO’s
motion in limine. Accordingly, BMO’s motion in limine is denied.
B.

Collins’ Motion to Dismiss and/or Quash the Citation
A court must have personal jurisdiction over the citation respondent in order to have the

authority to preside over the citation proceeding. See Philos Techs., Inc. v. Philos & D, Inc., 645
F.3d 851, 855 (7th Cir. 2011) (“A court without personal jurisdiction of the defendant is wholly
without power to proceed to an adjudication binding on that defendant.”) (internal quotations and
citations omitted); Woolard v. Woolard, No. 05-C-7280, 2009 WL 3150435, at *3 (N.D. Ill.
Sept. 23, 2009) (noting that a court must establish personal jurisdiction under the Illinois longarm statute to properly issue a citation); cf. Wachovia Secs., LLC v. NOLA, LLC, 248 F.R.D. 544,
547 (N.D. Ill. 2008) (requiring personal jurisdiction over an individual not named in the action
underlying a citation proceeding for that individual to be subject to contempt for failing to
comply with a citation).

“A federal court exercising diversity jurisdiction has personal

jurisdiction only where a court of the state in which it sits would have such jurisdiction. Illinois
extends personal jurisdiction to the limits allowed by the United States Constitution, so the state
and federal standards are congruent here.” Philos Techs., Inc., 645 F.3d at 855 n.2 (citing RAR,
Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997) and Citadel Grp. Ltd. v. Wash.
Reg’l Med. Ctr., 536 F.3d 757, 760-61 (7th Cir. 2008)); see 735 Ill. Comp. Stat. 5/2-209(c) (“A
court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois
Constitution and the Constitution of the United States.”).
In Hyatt International Corp. v. Coco, 302 F.3d 707 (7th Cir. 2002), however, the Seventh
Circuit recognized that the Illinois Supreme Court, wishing to give a “‘definite meaning and
scope’” to the long-arm statute that did not “‘fluctuate with every new pronouncement on the

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limits of Federal due process,’” had in one case carried out an independent analysis of the due
process limits on personal jurisdiction under the Illinois Constitution. Id. at 715 (quoting Rollins
v. Ellwood, 565 N.E.2d 1302, 1314 (Ill. 1990)). In its jurisdictional analysis in Coco, the
Seventh Circuit noted that while the two constitutional analyses “hypothetically might diverge in
some cases,” in the case at bar, no such divergence was evident. 302 F.3d at 715-16. Here, the
court follows a similar track: it notes the possibility of a divergence, but finds nothing in the
record to suggest a divergence here.
In Rollins, the Illinois Supreme Court held that the Illinois Constitution’s due process
clause did not permit an Illinois court to exercise personal jurisdiction over a non-resident
Maryland police officer who, while carrying out his duties as a Maryland police officer,
committed an alleged tort in Illinois by conducting an extradition in Illinois in error. 565 N.E.2d
at 1318. The court recognized that the Supreme Court, based on its analysis in Calder v. Jones,
465 U.S. 783 (1984), would have permitted the exercise of personal jurisdiction by virtue of the
fact that the tort was directed at, committed in, and had effects in Illinois. The Illinois Supreme
Court, however, held that the Illinois Constitution did not permit the exercise of jurisdiction.
Rollins, 565 N.E.2d at 1318. Instead, based on the state constitution the Illinois court adopted a
so-called fiduciary shield doctrine, under which employees whose only contact with Illinois
stems from acts carried out within the scope of their employment are protected from being haled
into court – even if their contacts include allegedly tortious conduct. Id.; see Rice v. Nova
Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994) (recognizing the fiduciary shield doctrine
and noting that it “denies personal jurisdiction over an individual whose presence and activity in
the state in which the suit is brought were solely on behalf of his employer or other principal”).

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The fiduciary shield doctrine does not apply here since it appears clear that, when Collins
submitted the September 2010 affidavit on behalf of SK Foods, he was not an SK Foods
employee; indeed, Collins himself avers that he became a director and officer of Cedenco only
after SK Foods had sold Cedenco. In addition, assuming that Collins conspired with Salyer to
drain SK Foods of its assets in an attempt to avoid any judgment that might have been (and
ultimately was entered) against SK Foods in this court, the fraudulent transfer of money is not
within the scope of one’s employment; even if Cedenco was an SK Foods subsidiary when
Collins submitted his affidavit, engaging in illegal conduct would have violated his fiduciary
duties. Finally, to the extent that his submission of an affidavit could be said to have arisen out
of his work as an accountant, there is no evidence to suggest that Collins was hired to submit an
affidavit; rather, Collins was hired to prepare tax returns. Indeed, nothing about the affidavit
suggests it was anything but a voluntary act of Collins inserting himself into proceedings in this
court just before this court issued its judgment.
Personal jurisdiction analysis under the federal due process clause begins with the longsettled test from International Shoe Co. v. Washington, which requires defendants to have
“certain minimum contacts with [the forum] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’” 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). “Crucial to the minimum contacts
analysis is a showing that the defendant ‘should reasonably anticipate being haled into court’” in
the forum state, Coco, 302 F.3d at 716 (quoting World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)), because “the defendant has ‘purposefully avail[ed] itself of the privilege
of conducting activities’” there.

Coco, 302 F.3d at 716 (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985)). If a defendant’s contacts are continuous and systematic

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with the forum state, then a court may exercise “general jurisdiction” over the defendant even
when the case in which jurisdiction is sought is unrelated to those contacts. Helicopteros
Nacionales de Colombia v. Hall, 466 U.S. 408, 414-15, 415 n.9 (1984). Where continuous and
systematic contacts are absent, a court may nevertheless exercise “specific jurisdiction” if the
litigation is related to the defendant’s contacts with the forum state. Id. at 414 n.8. Indeed, “[s]o
long as it creates a ‘substantial connection’ with the forum, even a single act can support
jurisdiction.” Burger King, 471 U.S. at 475 n.18 (quoting McGee v. Int’l Life Ins. Co., 355 U.S.
220, 223 (1957)). Moreover, the defendant’s physical presence in the forum state is not required
at any point to support the exercise of jurisdiction. Burger King, 471 U.S. at 476.
BMO does not claim the court may exercise general jurisdiction. Instead, BMO argues
that the court may exercise specific jurisdiction over Collins based on his allegedly tortious
transfers of SK Foods’ assets to avoid this court’s judgment and his submission of the affidavit in
the underlying litigation. The court concludes that the affidavit alone constitutes a sufficient
basis for the exercise of specific personal jurisdiction and does not consider whether the alleged
transfers would support jurisdiction.
In order for there to be specific jurisdiction, “the defendant’s contacts with the forum
state must directly relate to the challenged conduct or transaction . . . [and must be evaluated] by
reference to the particular conduct underlying the claims made in the lawsuit.” Tamburo, 601
F.3d at 702 (citing GCIU-Emp’r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1024 (7th Cir.
2009)). Specific jurisdiction is appropriate where (1) the defendant has either purposefully
directed his or her activities at the forum state or purposefully availed him- or herself of the
privilege of conducting business in that state; (2) the alleged injury arises out of or is related to
the defendant’s forum-related activities; and (3) the exercise of specific personal jurisdiction

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comports with traditional notions of fair play and substantial justice as required by the federal
due process clause. Tamburo, 601 F.3d at 702.
1.

Collins Purposefully Directed His Affidavit Toward Illinois.

The primary rationale of the purposeful direction requirement is to “‘ensure that an outof-state defendant is not bound to appear to account for merely random, fortuitous, or attenuated
contacts with the forum state.’” Id. (internal quotation marks omitted) (quoting Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008)). Here, there is nothing
random, fortuitous, or attenuated about Collins’ affidavit contact with Illinois: while the affidavit
may have been prepared in California, it was specifically directed to this forum to raise an
affirmative defense in litigation here.

Indeed, the caption at the top of Collins’ affidavit

indicates that the affidavit was prepared for submission to the Northern District of Illinois. The
caption further indicates that the affidavit was prepared for the court’s consideration in case
number 09 C 3479 (i.e., in the underlying breach of contract action). In his affidavit, Collins
anticipated being called to testify in this court, stating, “If called upon to testify in this case, I
could competently testify to the following facts based upon my personal knowledge.” (See
Collins Decl.) Given the foregoing, Collins’ affidavit was purposefully directed at Illinois.
2.

BMO’s Belief that Collins Has Information About the Whereabouts of SK
Foods, LLC’s Assets Arose Out of Collins’ Submission of His September 2010
Affidavit.

The second prong of the specific jurisdiction test requires pinpointing, in the ordinary
case, a legal injury. The prong’s application is most obvious when parties dispute a contract or
when a party alleges a tort was committed against it. See, e.g., Coco, 302 F.3d at 716-17
(discussing specific jurisdiction in the context of a disputed contract and observing that only the
“‘dealings between the parties in regard to the disputed contract’” are relevant for a specific

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jurisdiction minimum contacts analysis (quoting RAR, 107 F.3d at 1277)). For instance, in a tort
suit against a nonresident, the tort must arise out of or be related to the defendant’s minimum
contacts in order for the court to exercise specific jurisdiction. In a citation proceeding against a
third party, however, no legal injury is alleged as having been committed by the third party.
Instead, what gives rise to this proceeding is BMO’s showing that Collins might hold or control
assets to which BMO is entitled.
BMO’s evidence that Collins may have pertinent information is based in the affidavit. In
the affidavit, Collins revealed that he provided services as an accountant for “Salyer and the
related Salyer family entities.” (See Collins Decl.) Collins also provided his business address.
The court can reasonably infer that Collins, in his capacity as an accountant for Salyer and
Salyer’s companies (which would include SK Foods, LLC), has some knowledge of SK Foods’
finances. In addition, BMO matched Collins’ business address to the city, state, and zip code of
the address of the person who, as reflected in bank records, used wire transfers to send millions
of dollars from SK Foods, LLC’s accounts overseas. (See Pl.’s Resp. to Cary Scott Collins’ Mot.
to Quash Citation to Discover Assets at 8, Ex. 9, & Ex. 13, ECF Nos. 99, 100-10, 100-14.)
3.

Asserting Jurisdiction over Collins Would Not Offend Traditional Notions of
Fair Play and Substantial Justice.

Finally, the exercise of personal jurisdiction over Collins would not offend traditional
notions of fair play and substantial justice. While International Shoe first suggested the fair play
requirement as part of the minimum contacts analysis, 326 U.S. at 316, it was in Burger King
that the Supreme Court laid out factors and a burden-shifting scheme offering a framework for
determining when the requirement is met. 471 U.S. at 477; see also Tamburo, 601 F.3d at 709
(applying the Burger King factors in analyzing the fair play requirement); Hoffa Eng’g, LLC v.
Craney, No. 1:06-cv-481-JDT-TAB, 2007 WL 831820, at *7 (S.D. Ind. Mar. 12, 2007). The

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factors the court may consider in “appropriate cases” are (1) the burden on the defendant of
litigating in the forum; (2) the interests of the forum; (3) the plaintiff’s interest in obtaining
relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies; and (5) the shared interests of states in furthering fundamental substantive
policies. Burger King, 471 U.S. at 477. However, when “a defendant who purposefully has
directed his activities at forum residents seeks to defeat jurisdiction, he must present a
compelling case that the presence of some other considerations would render jurisdiction
unreasonable.” Id. Here, Collins has purposefully directed his affidavit at Illinois, in an attempt
to provide information material to the disposition of the underlying proceeding here, and thus
created a substantial connection with the forum; as a result, Collins must present a compelling
case that jurisdiction is unreasonable under the Burger King factors in order to avoid the
assertion of jurisdiction over him.
Collins has not met this burden. While he contends that appearing in court in Illinois
would be burdensome, both logistically and financially, such concerns are diffused by
consideration of what is at stake in the exercise of jurisdiction here. Indeed, Collins will not be
on trial in Illinois. Collins may not even need to come to Illinois. BMO has offered to have
Collins sit for a citation deposition at his convenience in California. If that deposition reveals (a)
no SK Foods assets in Collins’ possession or control, or (b) material information about the
location of the assets, then the citation proceeding will end.
Moreover, the interests of the forum and the interests of the plaintiff in seeking relief are
both substantial here: the forum has a substantial interest in seeing judgments issued under its
laws satisfied, and the plaintiff has a substantial interest in obtaining the relief the court has
already granted. The citation proceeding also fosters judicial efficiency, at least to the extent that

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it permits satisfaction of a judgment through a flexible process that does not require BMO to file
a separate lawsuit against Collins to secure assets to which BMO is entitled.
CONCLUSION
For the foregoing reasons, the court denies both Collins’ motion to dismiss and/or quash
the Citation for lack of personal jurisdiction and BMO’s motion in limine.

ENTER:
_____/s/____________________________
JOAN B. GOTTSCHALL
United States District Judge
DATED: September 30, 2011

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