C.H. Johnson Consulting, Inc. v. Roosevelt Roads Naval Station Lands and Facilities Redevelopment Authority
Filing
34
ENTER MEMORANDUM OPINION AND ORDER: For the reasons stated below, the Court denies Defendant's motion to dismiss for lack of personal jurisdiction or improper venue 11 and also denies Plaintiffs motion to open and supplement briefing schedule 28 . Signed by the Honorable Robert M. Dow, Jr on 11/5/2013. Status hearing set for 12/3/2013 at 09:00 AM. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
C.H. JOHNSON CONSULTING, INC.,
Plaintiff,
v.
ROOSEVELT ROADS NAVAL STATION
LANDS AND FACILITIES
REDEVELOPMENT AUTHORITY,
Defendant.
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Case No. 1:12-cv-08759
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff C.H. Johnson Consulting, Inc. (“CHJC”) has sued Defendant Roosevelt Roads
Naval Station Lands and Facilities Redevelopment Authority (“Roosevelt Roads”) for breach of
contract, unjust enrichment, and an equitable lien. Defendant has moved to dismiss for lack of
personal jurisdiction, or in the alternative, requested a change of venue to the United States
District Court for the District of Puerto Rico [11], arguing that venue is not proper in the
Northern District of Illinois. For the reasons stated below, the Court denies Defendant’s motion
to dismiss for lack of personal jurisdiction or improper venue [11] and also denies Plaintiff’s
motion to open and supplement briefing schedule [28].
I.
Background
Rule 12(b)(2) states that an action against a party over whom the Court lacks personal
jurisdiction must be dismissed. Fed. R. Civ. P. 12(b)(2). Plaintiff has the burden of establishing
a prima facie case of personal jurisdiction. See Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d
712, 714 (7th Cir. 1998). When determining whether Plaintiff has met its burden, jurisdictional
allegations pleaded in the complaint are accepted as true unless proved otherwise by affidavits or
exhibits. See Purdue Research Found. v. Sanofi-Sythelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003); Travelers Cas. & Sur. Co. v. Interclaim (Bermuda) Ltd., 304 F. Supp. 2d 1018, 1021
(N.D. Ill. 2004). In addition, any conflicts in the affidavits regarding relevant facts must be
resolved in Plaintiff’s favor. See Purdue, 338 F.3d at 782 (citations omitted). But “once the
defendant has submitted affidavits or other evidence in opposition to the exercise of jurisdiction,
the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the
exercise of jurisdiction.” Id. at 783.
According to Defendant, Roosevelt Roads is a “public corporation and a governmental
entity of the Commonwealth of Puerto Rico,” created for the purpose of economic
redevelopment of the lands and facilities at a former Navy base located in Ceiba, Puerto Rico,
and to regulate usage of the lands and facilities. Defendant’s place of business is located in San
Juan, Puerto Rico. In 2009, Defendant was looking for a firm to provide consultation in the
development of the former Navy base. Roosevelt Roads’ executive director at that time, Jaime
Gonzalez, had worked with Plaintiff CHJC in 1997, when the Puerto Rico Tourism Company
hired CHJC for consultation in developing Puerto Rico’s new convention center. CHJC is an
Illinois corporation that provides economic development and planning services.
In February 2009, Gonzalez contacted Charles Johnson, the president of CHJC, to discuss
the possibility of retaining CHJC’s services. Following their conversation, CHJC and Roosevelt
Roads entered into a series of contracts and agreements for the redevelopment of lands located in
Ceiba, Puerto Rico. The first contract covered the period of May 13, 2009 through June 30,
2009. The second contract covered the period of July 1, 2009 through June 30, 2010, and the
2
third contract covered the period of May 2, 2010 through June 30, 2010.1 Each contract was
signed and executed in Puerto Rico and was entered for the purposes of securing and providing
consulting services in strategic planning, advice in gaming legislation, and financial modeling in
order to develop the Ceiba property. Gonzalez traveled to Chicago in June 2009 to discuss
renewal of the contract for the period of July 2009 through June 2010. During this time,
Gonzalez and Johnson also prepared for a briefing to be held at an economic summit in Puerto
Rico in late June 2009.
According to CHJC, Roosevelt Roads also authorized CHJC to hire sub-contractors—
including Chicago Consulting Studios (CCS), a Chicago-based consulting firm—to perform
work on the 2009-2010 contract. When CCS completed work under its 2009 sub-contract with
CHJC, which term ended December 31, 2009, Roosevelt Roads contracted directly with CCS for
CCS’s services.
As a result of Roosevelt Roads’ dealings with CHJC and CCS, Erwin Kiess, who
replaced Gonzalez as executive director of Roosevelt Roads, traveled to Chicago several times
between December 2009 and August 2011. Roosevelt Roads also participated in telephone calls
and teleconferences with CCS and CHJC in Chicago during the time period at issue and
exchanged “hundreds of emails, faxes, and phone calls” with CHJC and CCS. In total, CHJC
alleges that Roosevelt Roads held approximately nine meetings in Chicago to discuss execution
of the project with CHJC and CCS. Although the current record does not support a finding that a
Roosevelt Roads’ representative was present in person for each meeting, it appears that a
Roosevelt Roads’ representative was present for at least five or six of the nine meetings and also
participated by phone during other meetings. In turn, CHJC representatives traveled to Puerto
1
CHJC also alleges that Roosevelt Roads expressly authorized two contract extensions in the amount of
$80,000 each.
3
Rico on various occasions to perform obligations under the contract. However, according to
CHJC’s president, most of the work performed by CHJC was performed in Chicago.
II.
Personal Jurisdiction
A.
Legal Standard
A federal court sitting in diversity in Illinois will have personal jurisdiction over a
defendant only if jurisdiction is proper under Illinois’s long-arm statute. Citadel Grp. Ltd. v.
Wash. Reg’l Med. Ctr., 536 F.3d 757, 760 (7th Cir. 2008). Thus, courts examine three “distinct
obstacles to personal jurisdiction:” (1) state statutory law, (2) state constitutional law, and (3)
federal constitutional law. See RAR, Inc. v. Turner Diesel Ltd., 107 F.3d 1272, 1276 (7th Cir.
1997).
But because the Illinois long-arm statute authorizes personal jurisdiction to the
constitutional limit, the analysis “collapse[s] into two constitutional inquiries — one state and
one federal.” RAR, 107 F.3d at 1276.
The Seventh Circuit has noted that “there is no operative difference between the limits
imposed by the Illinois Constitution and the federal limitations on personal jurisdiction,” Hyatt
Int’l Corp. v. Coco, 302 F.3d 707, 715 (7th Cir. 2003), despite a cautionary pronouncement in a
1990 Illinois Supreme Court decision suggesting that the state and federal standards may not be
co-extensive. See Rollins v. Elwood, 565 N.E.2d 1302, 1316 (Ill. 1990); see also Hyatt Int’l, 302
F.3d at 715 (acknowledging Rollins, but noting that even if the Illinois state and federal due
process standards hypothetically might diverge, no basis for such a divergence existed in the case
before it). In light of the Seventh Circuit’s assessment in Hyatt and the absence of post-Rollins
guidance from the Illinois courts as to how Illinois and federal law may differ as a practical
matter in regard to personal jurisdiction, a single due process inquiry will suffice. See Hyatt, 302
4
F.3d at 715; Kostal v. Pinkus Dermatopathology Lab., P.C., 827 N.E.2d 1031, 1037 (Ill. App. Ct.
1st Dist. 2005) (noting that the court had not located any post-Rollins cases finding that federal
due process requirements had been met where Illinois due process requirements were not).
The federal test for personal jurisdiction under the Due Process Clause of Fourteenth
Amendment authorizes a court to exercise jurisdiction over a non-resident defendant only if the
defendant has “certain minimum contacts with [the state] such that the maintenance of the suit
does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
“[I]t is essential in each case that there be some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). This “purposeful
availment” requirement ensures that a non-resident defendant will not be forced to litigate in a
jurisdiction as a result of random contacts with the forum or the unilateral activity of the
plaintiff. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985).
In addition, the Supreme Court has distinguished two types of personal jurisdiction:
general and specific. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16
(1984); see also uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425-26 (7th Cir. 2010).
General jurisdiction exists where the defendant has “continuous and systematic” contacts with
the forum state. Helicopteros, 466 U.S. at 416. If such contacts exist, “the court may exercise
personal jurisdiction over the defendant even in cases that do not arise out of and are not related
to the defendant’s forum contacts.” Hyatt, 302 F.2d at 713.
On the other hand, specific jurisdiction is more limited and a plaintiff in such
circumstances must show that the alleged controversy between the parties “arise[s] out of” or
5
“relate[s] to” the defendant’s forum contacts in addition to establishing that minimum contacts
exist. Id. The defendant’s contacts with the forum state must be of a nature and quality such that
the defendant has fair warning that it could be required to defend a suit in that forum. Burger
King, 471 U.S. at 472. This ensures that jurisdiction over a defendant is “not based on fortuitous
contacts, but on contacts that demonstrate a real relationship with the state with respect to the
transaction at issue” and that “the defendant retains sufficient, albeit minimal, ability to structure
its activities so that it can reasonably anticipate the jurisdictions in which it will be required to
answer for its conduct.” Purdue Research Found., 338 F.3d at 780. “Notably, it must be the
activity of the defendant that makes it amenable to jurisdiction, not the unilateral activity of the
plaintiff or some other entity.” Id.
Finally, even if the purposeful availment and specific jurisdiction requirements have been
met, the Court also must consider whether the exercise of personal jurisdiction comports with
“traditional notions of fair play and substantial justice.” Burger King, 471 U.S. at 476 (quoting
Int’l Shoe, 326 U.S. at 320). “Thus, courts in ‘appropriate cases’ may evaluate ‘the burden on
the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the interstate judicial
system’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies,’ and ‘the shared interest of the
several States in furthering fundamental substantive social policies.’” Burger King, 471 U.S. at
477 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). These
considerations are sometimes used to establish the reasonableness of jurisdiction in lieu of a
strong showing of minimum contacts. Burger King, 471 U.S. at 477 (citing Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 780 (1984)).
6
B.
Analysis
Plaintiff CHJC alleges that Defendant Roosevelt Roads has had “continuous and
systematic” contacts with Illinois sufficient to justify both general and specific personal
jurisdiction. Not surprisingly, Plaintiff’s argument with respect to general jurisdiction is brief.
Simply put, the record before the Court does not support a finding of general jurisdiction.
Instead, as demonstrated below, Roosevelt Roads’ contacts with the state of Illinois (at least
those that are reflected in the record before the Court) arise out of the contracts with CHJC that
are the subject of this dispute, as well as additional sub-contracts which arose from the initial
contract with CHJC.
Thus, the Court moves to the specific jurisdiction inquiry. See Hyatt Int’l, 302 F.3d at
713 (explaining that where a defendant’s contacts with the forum state are more limited, the
plaintiff’s only option is to establish specific personal jurisdiction). Plaintiff must establish that:
(1) Roosevelt Roads has purposefully directed its activities at Illinois or purposefully availed
itself of the privilege of conducting business in Illinois; (2) the alleged breach of contract arises
out of Roosevelt Roads’ Illinois related-activities; and (3) subjecting Roosevelt Roads to specific
jurisdiction in Illinois comports with traditional notions of fair play and substantial justice. See
Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010) (citing Burger King, 471 U.S. at 472;
Int'l Shoe, 326 U.S. at 316).
1.
Purposeful Availment
A contract with an Illinois plaintiff is insufficient, by itself, to justify personal
jurisdiction. See Centurion Serv. Grp. v. SBMC Healthcare, LLC, 2013 WL 1903292, at *7
7
(N.D. Ill. May 7, 2013)).
The specific jurisdiction inquiry focuses on the totality of the
circumstances and the Seventh Circuit has instructed district courts not to employ a “‘mechanical
or quantitative’ test.” Citadel, 536 F.3d at 761 (Quoting Int'l Shoe, 326 U.S. at 319).
Burger
King instructs that “prior negotiations and contemplated future consequences, along with the
terms of the contract and the parties’ actual course of dealing,” provide a basis from which to
determine if Defendant’s contacts are sufficient for purposeful availment. Burger King, 471 U.S.
at 478. Illinois courts often look to “who initiated the transaction, where the contract was
entered into, where the performance of the contract was to take place, and where the contract was
negotiated.” Citadel, 536 F.3d at 762. Ultimately, none of the factors is dispositive but each
“can support an exercise of jurisdiction in an appropriate case.” Id. at 762 n. 4 (quoting an
unrelated case with the same plaintiff Citadel Grp. Ltd. v. Merle W. Med. Ctr., Inc., 06-C-6162,
2007 WL 5160444 (N.D. Ill. June 13, 2007)). The crucial question ultimately is whether
Roosevelt Roads should have “reasonably anticipate[d] being haled into court” in Illinois.
Volkswagen, 444 U.S. at 287.
Roosevelt Roads does not dispute that it initiated the contact between the parties. See
Heritage House Rest., Inc. v. Cont’l Funding Grp., Inc., 906 F.2d 276, 284 (7th Cir. 1990)
(holding that where a defendant “knowingly has reached out to [a] corporation and created a
continuing relationship or obligation, it is subject to the jurisdiction of Illinois courts”). Indeed,
the current record strongly supports an inference that Roosevelt Roads intended to create a
continuing relationship with Illinois-based CHJC. Jaime Gonzalez, Roosevelt Roads’ executive
director at the time that the initial contract was formed, had worked with CHJC in 1997, when
the Puerto Rico Tourism Company hired CHJC for consultation in the planning of Puerto Rico’s
new convention center. In February 2009, Gonzalez contacted Charles Johnson to discuss the
8
possibility of retaining CHJC’s services a second time. Following their conversation, CHJC and
Roosevelt Roads entered into a series of contracts and agreements for the redevelopment of lands
located in Puerto Rico. Thus, Gonzalez’s call to Johnson was not an isolated communication,
nor did the relationship arise out of the “unilateral activity” of CHJC. In fact, quite the opposite:
Gonzalez contacted Johnson in Illinois to request his ongoing assistance with the Ceiba lands
project.
Although it appears that the contracts were signed in Puerto Rico, Plaintiff has put forth
(and Defendant has not contested) evidence that representatives of Roosevelt Roads, including
former and current executive directors Jaime Gonzalez and Erwin Kiess, traveled to Illinois
approximately five or six times for purposes related to the contract at issue or the sub-contracts
arising out of the contract at issue. The visits involved negotiations about contract extensions
and modifications as well as discussions about the work to be performed and the division of
labor among the different sub-contractors.
Here, Roosevelt Roads not only made several trips to Illinois for the specific purpose of
working through issues related to its contracts with CHJC and CCS, it also communicated
extensively by mail and wire with Illinois’ entitites by exchanging “hundreds of emails, faxes,
and phone calls” with CHJC and CCS.
“As the Supreme Court wrote in Burger King, ‘a
substantial amount of business is transacted solely by mail and wire communications across state
lines, thus obviating the need for physical presence within a State in which business is
conducted.’” Purdue, 338 F.3d at 781 (quoting Burger King, 471 U.S. at 476). The Seventh
Circuit went further in Purdue, stating that “ongoing communications * * * through use of mail,
telephone, facsimile and other means of communication” are probative of purposeful availment.
Id. at 785. The numerous visits, phone calls, emails, and other correspondence between the
9
parties constitute “sustained and intensive contact” over the course of two to three years with the
specific aim of negotiating the terms of a contract. Contacts such as these are not “random,
fortuitous, or attenuated.” Triad Capital Mgmt., LLC v. Private Equity Capital Corp., 2008 WL
4104357, *5 (N.D. Ill. Aug. 25, 2008) (internal quotation marks omitted). Additionally,
CHJC
maintains that it primarily performed its end of the contract in Illinois. While the end result was
the development of property in Puerto Rico, the authorization was not for CHJC to begin
construction. The authorization encompassed project development, which, based on the limited
record before the Court,2 consisted of consulting services carried out (for the most part) in
Illinois. A plaintiff’s performance supports jurisdiction where that performance is on behalf of
the defendant, as a result of the defendant’s activities, and therefore is not unilateral. See
Citadel, 536 F.3d at 764 (“[Plaintiff] took steps on [Defendant’s] behalf, with [Defendant’s]
authorization, to procure the necessary prerequisites to constructing a building, and so its actions
were not the ‘unilateral activities’ of a party having some relationship with an out-of-state
defendant.”).
The instant case is closely analogous to Citadel in several important respects. Roosevelt
Roads knowingly created a relationship authorizing CHJC to act on its behalf in Illinois to
provide consultation in the development of the former Navy base. While the final product of the
relationship, the former base (akin to the building in Citadel), was to be outside of the forum, the
purpose of this contract was to consult on the development primarily from Illinois. The parties
clearly contemplated a relationship continuing for at least a year. The relationship naturally was
2
The record is not particularly detailed regarding the specific tasks performed by CHJC, but the Court is
less concerned with the “scope of the parties obligations at this juncture,” and more concerned with
Defendant’s contacts with Illinois which gave rise to the work performed by CHJC. See Citadel, 536
F.3d at 763. In any event, at this stage, the Court resolves conflicts in the record in Plaintiff’s favor and
thus credits CHJC’s assertion that the contracts were substantially performed in Illinois. See Purdue, 338
F.3d at 782 (citations omitted).
10
based on mail, e-mail, and telephone correspondence, but also included several trips to Illinois
by Roosevelt Roads representatives. Roosevelt Roads knew that CHJC and its subcontractors
would be providing services from Illinois, which could have future legal consequences.
Roosevelt Roads initiated significant phone, e-mail, mail, and in-person contacts with CHJC in
Illinois throughout the formation of the contract. Via these contacts, Roosevelt Roads actively
negotiated with CHJC, enlisted CHJC for the project, and presumably sent payment to CHJC in
Illinois. In the court’s view, the nature of the contract, to provide a service from the forum state
along with the “continuing obligations and repeated contacts,” which were contemplated at the
outset, crossed “the threshold from offending due process to sufficient minimum contacts.” Id.
at 763. In sum, Plaintiff CHJC has satisfied its burden of demonstrating that Roosevelt Roads
had sufficient minimum contacts with Illinois such that it should have reasonably anticipated that
CHJC may bring an action against it in Illinois.
2.
Forum Contacts Relating to this Controversy
“Out-of-state residents may avail themselves of the benefits and protections of doing
business in a forum state, but they do so in exchange for submitting to jurisdiction in that state
for claims arising from or relating to those activities.” uBID, Inc. v. GoDaddy Grp., Inc., 623
F.3d 421, 430 (7th Cir. 2010). The Seventh Circuit has embraced this “tacit quid pro quo” test
such that specific personal jurisdiction is justified where “the defendant’s contacts * * * gave the
defendant fair warning that the very business it sought in [the forum] might injure [a forum]
resident.” Id.
A contract between the parties alone is not sufficient to establish relatedness. Rather, the
contacts must be “between the parties in regard to the disputed contract.” RAR, Inc. v. Turner
11
Diesel, Ltd., 107 F.3d 1272, 1278 (7th Cir. 1997) (quoting Vetrotex Certainteed Corp. v. Consol.
Fiber Glass Prod. Co., 75 F.3d 147, 153 (3d Cir. 1996)) (emphasis in original). This action
certainly arises from the contract between the parties, the formation of which also gave rise to
the sub-contacts discussed above. However, to be clear, the Court has not considered CHJC’s
activities with third parties in Illinois as relevant to establish Roosevelt Roads’ purposeful
availment. Instead, the Court found relevant Roosevelt Roads’ contacts authorizing CHJC to
engage third parties in Illinois.
In evaluating the merits of this contractual dispute, the
negotiations, award, payment, and fulfillment of contract obligations by each party will be
relevant. More may be considered for a resolution on the merits, but the contacts need only be
relevant to the dispute, not encompass the entirety of that dispute. uBID, 623 F.3d at 430
(approving of a Third Circuit decision noting that “defendant’s contacts with [the forum] proved
little about the plaintiff’s negligence claim, but undoubtedly gave the defendant fair warning.”).
Here, Roosevelt Roads’ contacts with CHJC, as well as its contacts authorizing CHJC to contract
with third parties, weigh in favor of finding jurisdiction over Roosevelt Roads.
3.
Fairness
Purposeful availment is not the end of the analysis, for Roosevelt Roads claims that
litigating in Illinois would offend traditional notions of fair play and substantial justice. While
Roosevelt Roads presumably would prefer to litigate in Puerto Rico, “[w]hen minimum contacts
have been established, often the interest of the plaintiff and the forum in the exercise of
jurisdiction will justify even the serious burdens placed on the alien defendant.” Asahi Metal
Indus. Co., Ltd. v. Superior Court of Cal., Solano Cnty., 480 U.S. 102, 115 (1987). Roosevelt
Roads makes no convincing argument that the burdens in this case will be particularly severe.
There is no indication that the number of witnesses will be particularly large or that the process
12
of discovery will be particularly complex due to the geography, much less that the process would
be easier overall if the case were litigated elsewhere, all of which are factors that bear on the
analysis. Interlease Aviation Investors II (Aloha) LLC v. Vanguard Airlines, Inc., 262 F.Supp.2d
898, 909 (N.D. Ill. 2003) (citing Logan Prods., Inc. v. Optibase, Inc., 103 F.3d 49, 53 (7th Cir.
1996)). Instead, it appears that employees of Plaintiff CHJC and its subcontractors will be the
primary witnesses, and none of them reside in Puerto Rico.
In short, there is no reason to believe that this case will be any different from the mine
run of cases involving diverse parties. Once a plaintiff presents evidence of minimum contacts,
it becomes a defendant’s job to show that traditional notions of fair play and substantial justice
would be offended if the defendant were haled into the forum. Burger King, 471 U.S. at 477
(“[W]here 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. (noting that a defendant who claims
substantial inconvenience “may seek a change of venue” and that most defendant considerations
can be “accommodated through means short of finding jurisdiction unconstitutional”); Asahi,
480 U.S. at 116 (Brennan, J., concurring) (acknowledging that it would be a “rare case[ ]” for
personal jurisdiction to be inappropriate where “the defendant has purposefully engaged in forum
activities”). Defendant has not carried that burden here.
Further, Illinois plainly has an interest in enforcing commercial transactions to which its
citizens are a party. See, e.g., McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957) (California
had a “manifest interest in providing effective means of redress for its residents when their
insurers refuse to pay claims”); uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d at 432 (7th Cir.
2010) (upholding jurisdiction in part because of “Illinois’s significant interest in providing a
13
forum for its residents to seek relief when they suffer harm in Illinois from a wrong that occurred
at least in part in Illinois.”). Defendant Roosevelt Roads’ assertion, unaccompanied by any
showing of a substantial hardship, does not prohibit an Illinois-based court from exercising
personal jurisdiction.
B.
Venue
In addition to moving to dismiss for lack of personal jurisdiction under Federal Rule
12(b)(2), Defendant’s motion also argues that venue is not proper in the Northern District of
Illinois. Rule 12(b)(3) provides that a party may move to dismiss a case not filed in a proper
venue.
Fed. R. Civ. P. 12(b)(3). Venue is proper in: (1) “a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located; (2)
a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be brought as provided in this section,
any judicial district in which any defendant is subject to the court's personal jurisdiction respect
to such action.” 28 U.S.C. § 1391(b)(1)-(3). For the purposes of § 1391(b)(1), a corporation
“shall be deemed to reside, if a defendant, in any judicial district in which such defendant is
subject to the court’s personal jurisdiction.” 28 U.S.C. § 1391(c)(2).
In considering a motion to dismiss for improper venue, the plaintiff bears the burden of
establishing proper venue. See Bell v. Woodward Governor Co., 2004 WL 1498145, at *1 (N.D.
Ill. July 2, 2004) (citing Grantham v. Challenge-Cook Bros., Inc. et al., 420 F.2d 1182, 1184 (7th
Cir. 1969)). The burden is met by making a prima facie showing that venue is proper. Id. As
14
with the jurisdiction inquiry, the Court will resolve all factual disputes in Plaintiff’s favor. See
Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir.1983).
Plaintiff asserts that venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2).
Under 28 U.S.C. § 1391(b)(2), venue is proper in a judicial district in which “a substantial part of
the events or omissions giving rise to the claim occurred.”
28 U.S.C. § 1391(b)(2).
Additionally, pursuant to section § 1391(b)(1) and (c)(2), Roosevelt Roads, a corporation, is
“deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the
court’s personal jurisdiction with respect to the civil action in question * * *.” 28 U.S.C. §
1391(c)(2). See Signode v. Sigma Technologies Int’l., LLC, 2010 WL 1251448, at *4 (N.D. Ill.
March 24, 2010) (citing a string of cases that state that LLCs are considered “corporations” for
the purposes of 28 U.S.C. § 1391(c)); Advocate Fin., L.L.C. v. Parker Interests, L.L. C., 2008
WL 2773650 at * 1 (M.D. La. July 16, 2008) (pointing out that “it is generally accepted that
unincorporated business associations such as partnerships and limited liability companies are
analogous to corporations for venue purposes”). Because Illinois has more than one judicial
district, Defendant is “deemed to reside in any district in [Illinois] within which its contacts
would be sufficient to subject it to personal jurisdiction if that district were a separate State.” 28
U.S.C. § 1391(d).
Defendant’s arguments regarding venue track its arguments regarding personal
jurisdiction. For the reasons discussed above, the Court has concluded that personal jurisdiction
is appropriate in Illinois. At this early stage in the proceedings, and because no evidentiary
hearing has been held on this matter, Plaintiff is responsible only for making a prima facie
showing of why venue is appropriate in this District: “[W]hen the district court rules on a
defendant’s motion to dismiss based on the submission of written materials, without the benefit
15
of an evidentiary hearing, ... the plaintiff need only make out a prima facie case of personal
jurisdiction.” Richter v. INSTAR Enterprises International, Inc., 594 F. Supp. 2d 1000, 1005
(N.D. Ill. 2009) (citing Purdue, 338 F.3d at 782 (internal quotation marks omitted)).3 Defendant
offers no persuasive evidence to contradict Plaintiff’s assertions or to disturb Plaintiff’s choice of
forum. For the same reasons that the Court concludes that personal jurisdiction over Roosevelt
Roads exists, venue is appropriate in this District under § 1391(b)(1) and (2).4
IV.
Conclusion
For the reasons stated above, the Court denies Defendant’s motion to dismiss for lack of
personal jurisdiction or improper venue [11] and also denies Plaintiff’s motion to open and
supplement briefing schedule [28].
Dated: November 5, 2013
_________________________________
Robert M. Dow, Jr.
United States District Judge
3
In Richter, the Court was discussing a motion to dismiss for lack of personal jurisdiction, in addition to a
motion to dismiss for improper venue. But because “[i]n ruling on a motion to dismiss for improper
venue, the Court follows the same standard as for a Rule 12(b)(2) dismissal,” the analogy between Richter
and the case at hand still holds true. Wendt v. Handler, Thayer & Duggan, LLC, 613 F. Supp. 2d 1021,
1027 (N.D. Ill. 2009).
4
To the extent that Defendant alternatively seeks to transfer venue pursuant to § 1404, Defendant’s
motion falls far short of its burden (as the moving party) of establishing “that the transferee forum is
clearly more convenient.” See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986)
(moving party has the burden of establishing “that the transferee forum is clearly more convenient,” based
on the particular facts of the case); see also Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286,
1293 (7th Cir. 1989). Defendant has not even cited, let alone undertaken the analysis required by, § 1404,
such as putting forth arguments and evidence related to factors such as (1) the plaintiff’s choice of forum,
(2) the convenience of the parties, (3) the convenience of the witnesses, (4) the interests of justice, and (5)
the location of the material events giving rise to the case. See Roberts & Schaefer Co. v. Merit
Contracting, Inc., 99 F.3d 248, 254 (7th Cir. 1996) (listing the first four statutory factors); see also
Continental Cas. Co. v. Staffing Concepts, Inc., No. 06 C 5473, 2009 WL 3055374, *2-3 (N.D. Ill. Sept.
18, 2009) (elaborating on sub-factors). Instead, Defendant has raised § 1391 and argued that venue is not
proper in the Northern District of Illinois.
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