T. H. Weiss, Inc. v. Newland North America Foods, Inc.

Filing 8

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/13/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
T.H. WEISS, INC.,
Plaintiff,
v.
NEWLAND NORTH AMERICA FOODS,
INC.,
Defendant.

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No.

13 C 1079

MEMORANDUM ORDER
T.H. Weiss, Inc. (“Weiss”) has filed its Complaint for
Breach of Contract against Newland North America Foods, Inc.
(“Newland”), seeking to recover some $343,000 because of
Newland’s asserted violation of the Perishable Agricultural
Commodities Act (“PACA”).

This memorandum order is issued sua

sponte to address what appears to be an obvious potential
jurisdictional problem.
Complaint ¶1 identifies both facets of Weiss’ corporate
citizenship as having a New York situs, while Complaint ¶2
identifies Newland as a Canadian corporation with known places of
business in Vaudreull, Quebec and Sarasota, Florida.

All of the

Complaint Exhibits, which comprise a series of customer
statements sent by Weiss evidencing the claimed contract
delinquency, list Weiss’ address as Lawrence, New York and were
directed to Newland’s Quebec address.

Nothing in the Complaint

or its exhibits indicates the slightest contact with the state of
Illinois--except, that is, for a jurisdictional irrelevancy:

the

location of Weiss’ lawyers’ office.
What Weiss’ counsel appear to hang their collective hat on
is the venue provision of 28 U.S.C. §1391(c)(3),1 under which “a
defendant not resident in the United States may be sued in any
juridical district and the joinder of such a defendant shall be
disregarded in determining where the action may be brought, with
respect to other defendants.”

But of course that statutory

provision cannot (and is not intended to) override the
constitutional constraints that govern the propriety of asserting
personal jurisdiction over a defendant.
17 Moore’s Federal Practice §111.02[1][b][ii] at 111-21 (3d
ed. 2012) begins in this fashion:
In most circuits, even if venue is technically proper
by satisfying the applicable general or special venue
statute (see [I], above, venue is considered to be
“wrong” if some other procedural obstacle in the
original court, such as a lack of personal jurisdiction
over the defendant, would prevent the action from
proceeding further there.
And Moore’s correctly lists the strongly-worded opinion in Cote
v. Wadel, 796 F.2d 981, 984-85 (7th Cir. 1986) as placing our
Court of Appeals in that “most circuits” category.
Weiss’ counsel would do well (1) to read that opinion
promptly and, if as this Court suspects there is no real
predicate for haling Newland into court here, (2) to consider an

1

Counsel get that citation slightly wrong in the
Complaint’s paragraph dealing with venue.
2

immediate voluntary dismissal of this action without prejudice.
If the absence of personal jurisdiction over Newland is really
clear, as appears to be the case, this Court would not
countenance the imposition of a burden on Newland to retain
counsel to defend this action here.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 13, 2013

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