Jackson v. N'Genuity Enterprises et al
Filing
47
Opinion and Order Signed by the Honorable Joan H. Lefkow on 8/28/2014: Defendat Bowen's motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(3) for improper venue 13 is denied. The parties shall report for the previously scheduled status hearing on August 28, 2014 at 11:15 a.m.Mailed notice(mad, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VINCENT E. JACKSON,
Plaintiff,
v.
N’GENUITY ENTERPRISES, CO.
and ALFRED BOWEN,
Defendants.
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Case No. 14 C 2197
Judge Joan H. Lefkow
OPINION AND ORDER
Plaintiff Vincent E. Jackson filed this suit against N’Genuity Enterprises, Co.
(“N’Genuity”) and Alfred Bowen for breach of fiduciary duty and violations of Arizona state
law. Bowen has moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and
12(b)(3). 1 (Dkt. 13.) For the reasons stated below, the motion to dismiss is denied.
BACKGROUND 2
I.
N’Genuity’s Formation and Jackson’s 2009 Suit
In April 2001, Jackson and Bowen’s wife, Valerie Littlechief, formed N’Genuity, a
wholesale food distributor. N’Genuity is an Arizona corporation with its principal place of
business in Arizona. (Dkt. 1 (“Compl.”) ¶¶ 6, 8.) Littlechief, an Arizona citizen, served as
1
Bowen filed this motion jointly with N’Genuity. (See dkt. 13.) On July 28, 2014, however,
N’Genuity filed a notice of bankruptcy under Chapter 11 of Title 11 of the United States Code. (Dkt. 41.)
Accordingly, Jackson’s suit against N’Genuity was automatically stayed, and this Opinion and Order only
addresses personal jurisdiction and venue as to Bowen.
2
The following facts are taken from the complaint and exhibits to the parties’ pleadings and
briefs and presumed true for the purpose of resolving the pending motion. See Dixon v. Page, 291 F.3d
485, 486 (7th Cir. 2002). Although Bowen urges the court to ignore additional assertions of fact not
made in the complaint, the court may consider matters outside the pleadings, such as affidavits and other
materials submitted by the parties in ruling on a motion to dismiss for lack of personal jurisdiction. See
Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003); Hollinger Int’l v.
Hollinger, Inc., No. 04 C 0698, 2005 WL 589000, at *10 (N.D. Ill. Mar. 11, 2005).
1
N’Genuity’s president and owned 51% of the shares, while Jackson, an Illinois citizen, was its
secretary and owned the remaining shares. (Id. ¶¶ 8-9.) Between 2007 and 2009, Jackson grew
suspicious that Littlechief was misappropriating corporate funds and using them to pay personal
expenses and to pay family members who were not N’Genuity employees, including her husband
and defendant in this suit, Bowen. (Id. ¶ 1; dkt. 24, Ex. 3 ¶¶ 23-24.) Jackson also suspected that
Littlechief and other N’Genuity directors were attempting to dilute his shares. (Compl., Ex. 1 at
56.)
In 2009, Jackson filed case number 09 C 6010 in this court against N’Genuity,
Littlechief, Bowen, and Bowen’s son Dustin Bowen (an N’Genuity director), among others, for
breach of fiduciary duty, violation of the Arizona Business Corporation Act, and civil
conspiracy, and other claims (“the 2009 suit”). 3 (Id. ¶ 1.) Many of the defendants in the 2009
suit, including N’Genuity, filed for bankruptcy protection and Jackson’s claims against
N’Genuity were tried before a bankruptcy court in Arizona. (Id. ¶¶ 1, 45.) The bankruptcy court
awarded Jackson $500,000 and litigation expenses. It ordered that Jackson retain 49% interest in
the reorganized company and that he be given notice of all N’Genuity meetings. (Id., Ex. 1 at
102-03.) This court retained jurisdiction over Jackson’s claims in the 2009 suit during the
pendency of the bankruptcy proceedings, and that suit is still ongoing in this court.
II.
Events Giving Rise to Jackson’s Current Claims
The Arizona bankruptcy court confirmed N’Genuity’s bankruptcy plan in April 2012 and
N’Genuity’s pre-bankruptcy debts were discharged as provided in the confirmation order. (Id.
3
For a full history of the events leading up to Jackson’s 2009 suit, see Jackson v. N’Genuity, No.
09 C 6010, dkt. 99, 2010 WL 3025015, at **1-2 (N.D. Ill Aug. 2, 2010) (“Jackson I”).
2
¶ 44.) Jackson alleges that the reorganized N’Genuity, under Bowen’s direction, 4 has continued
to misappropriate funds and engage in other nefarious acts. For example, it has paid Bowen and
his family members substantial amounts of money, both directly and through companies wholly
owned by Bowen or his family members, in an attempt to render itself “equity poor.” (Id. ¶¶ 5457, 64-66, 70-72, 76, 78-80, 82-84.) This has devalued Jackson’s interest in the company. (Id.
¶¶ 57, 81, 94.) And, to cover up its misconduct, it has refused to produce financial records to
Jackson for inspection.
Based on this post-discharge misconduct, Jackson filed a second suit against Bowen and
N’Genuity in this court. 5 He asserts a claim for violation of the Arizona Business Corporation
Act, § 10-1602, against N’Genuity (Count I), seeks appointment of a receiver for N’Genuity
(Count II), asserts a claim for breach of fiduciary duty against Bowen (Count III), and seeks an
injunction barring dilution or Jackson’s ownership interest in N’Genuity, payments or loans to
Bowen and his family members for personal expenses, and the transfer of N’Genuity’s assets or
funds to any business entity in which Bowen or his family members have an ownership interest
(Count IV). Bowen now moves to dismiss the complaint against him on personal jurisdiction
and venue grounds.
III.
Bowen’s Contacts with Illinois
According to Jackson, Bowen has maintained contacts with Illinois by daily
communications with Jackson (who works out of his home in Illinois) between 2001 and 2008.
(Dkt. 24, Ex. 3 ¶ 11.) He travelled to Illinois to meet with Jackson about N’Genuity in
4
Although Bowen is not officially an employee of N’Genuity, he directs its business affairs and
holds himself out as one of its directors. (Compl. ¶¶ 23, 28-29.)
5
Other individual defendants named in Jackson’s 2009 suit, such as Littlechief and Dustin
Bowen, are still involved in personal bankruptcy proceedings before the Arizona bankruptcy court and
thus are not named as defendants in this suit. (Compl. ¶ 4.)
3
Bolingbrook on November 8, 2008, and participated in the 2009 suit, including attending a
hearing on November 29, 2011. (Compl. ¶ 20.) Additionally, Jackson alleges that Bowen
traveled to Illinois “on behalf of N’Genuity to attend food shows and corporate meetings.” (Id.)
More generally, Jackson alleges that Bowen has managed N’Genuity over the past few years and
has alternately produced or refused to produce financial records to Jackson and has engaged in
misrepresentation and misconduct to reduce Jackson’s his share of profits.
ANALYSIS
I.
Personal Jurisdiction 6
A.
Legal Standard
Rule 12(b)(2) permits dismissal of a claim based on lack of personal jurisdiction over the
defendant. See Fed. R. Civ. P. 12(b)(2). The party asserting personal jurisdiction bears the
burden of proof. See Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782
(7th Cir. 2003). When the court rules on the motion without a hearing, the plaintiff need only
establish a “prima facie case of personal jurisdiction.” Id. (quoting Hyatt Int'l Corp. v. Coco,
302 F.3d 707, 713 (7th Cir. 2002)). The court will “read the complaint liberally, in its entirety,
and with every inference drawn in favor” of the plaintiff. Cent. States, Se. & Sw. Areas Pension
Fund v. Phencorp Reins. Co., 440 F.3d 870, 878 (7th Cir. 2006) (quoting Textor v. Bd. of
Regents of N. Ill. Univ., 711 F.2d 1387, 1393 (7th Cir. 1993)).
6
As an initial matter, Jackson argues that Bowen has waived his challenge to personal
jurisdiction and venue by participating in early proceedings in this suit. A party only waives the right to
move to dismiss for lack of personal jurisdiction if it first makes a different motion under Rule 12 of the
Federal Rules of Civil Procedure before it makes a Rule 12(b)(2) motion. See Fed. R. Civ. P. 12(g)(2),
(h)(1). The court cannot find that Bowen’s actions were more than participation in “[p]reliminary
litigation actions,” and such participation “do[es] not waive or forfeit personal-jurisdiction defenses.”
Swanson v. City of Hammond, Ind., 411 F. App’x 913, 915-16 (7th Cir. 2011). Through this limited and
early participation, Bowen did not create an expectation that he would “defend the suit on the merits,” and
accordingly did not waive his challenge to personal jurisdiction or venue. Id. at 916.
4
As the court is sitting in diversity, it has personal jurisdiction over Bowen to the extent
that an Illinois court could exercise such jurisdiction. See Philos Techs., Inc. v. Philos & D, Inc.,
645 F.3d 851, 855 n.2 (7th Cir. 2011). Illinois allows for personal jurisdiction to the extent
authorized by the Fourteenth Amendment’s due process clause, which merges the federal
constitutional and state statutory inquiries. See N. Grain Mktg., LLC v. Greving, 743 F.3d 487,
491-92 (7th Cir. 2014); Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010); see also 735 Ill.
Comp. Stat. 5/2–209(c). Under the Illinois long-arm statute, personal jurisdiction may be
general or specific. uBid, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010).
B.
General Jurisdiction
General jurisdiction is a demanding standard under which a defendant only can be haled
into an Illinois court if he has “‘continuous and systematic general business contacts’ with the
forum state.” uBid, 623 F.3d at 425-26 (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 415-16, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)). The showing a plaintiff
must make for the defendant to meet this standard is “rigorous, because ‘the consequences [of
general personal jurisdiction] can be severe[.]’” Acuity v. Roadtec, Inc., No. 13 C 6529, 2013
WL 6632631, at *4 (N.D. Ill. Dec. 16, 2013) (quoting uBid, 623 F.3d at 426); see also Sabados
v. Planned Parenthood of Greater Ind., 882 N.E.2d 121, 128, 378 Ill. App. 3d 243, 317 Ill. Dec.
547 (2007) (internal quotation marks, citations, and brackets omitted) (standard for exercising
general jurisdiction over entity doing business in Illinois is “rather high . . . because general
jurisdiction establishes that the corporation has effectively taken up residence in Illinois and,
therefore, may be sued on causes of action both related and unrelated to its activities in Illinois”).
Jackson bases his argument for general jurisdiction over Bowen on a handful of visits to
Illinois, his continued participation in the 2009 case, and telephone, email, and other
5
communications with Jackson regarding N’Genuity. 7 (Dkt. 24 at 5-6.) Jackson does not allege
any contacts in addition to those alleged in the 2009 suit, and the court already determined there
that these contacts do not meet the requirements for exercising general personal jurisdiction over
an individual. See Jackson I, 2010 WL 3025015, at *3. Thus, Jackson’s argument for general
jurisdiction over Bowen fails.
B.
Specific Jurisdiction
Specific jurisdiction grows out of “the relationship among the defendant, the forum, and
the litigation.” Walden v. Fiore, -- U.S. ---, 134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12 (2014)
(quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S. Ct. 1473, 79 L. Ed. 2d 790
(1984)). This type of jurisdiction requires that “(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.” N. Grain Mktg., 743 F.3d at 492 (quoting Tamburo, 601 F.3d at 701). “The exercise
of specific jurisdiction must also comport with traditional notions of fair play and substantial
justice.” Id. (citing Tamburo, 601 F.3d at 702).
1.
Whether Bowen’s Activities Were Purposefully Directed At Illinois
And Jackson’s Claim Arose Out Of Such Activities
The question of whether a defendant purposefully directed activities at a forum “depends
in large part on the type of claim at issue.” Felland v. Clifton, 682 F.3d 665, 674 (7th Cir. 2012).
Jackson asserts a breach of fiduciary duty claim against Bowen based on Bowen’s
misrepresentation or concealment of N’Genuity assets and corporate documents,
misappropriation of corporate funds, and intentional mismanagement of N’Genuity. Neither
party address whether the court’s analysis should be governed by Illinois or Arizona law, but law
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Bowen is domiciled in Arizona and there are no assertions that he was served in Illinois.
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in both states indicates that Jackson’s claim is properly classified as an intentional tort. See, e.g.,
Appley v. West, 929 F.2d 1176, 1180 (7th Cir. 1991) (“Illinois courts have recognized that
common law fraud and breach of fiduciary duty are intentional torts[.]”); 8 F.D.I.C. v. Jamison,
CV-12-1508, 2013 WL 1335606, at *6 (D. Ariz. Mar. 29, 2013) (breach of fiduciary duty is
intentional tort); Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 334 (Ariz. Ct.
App. 1996) (breach of fiduciary duty is tort). Because the court is comfortable characterizing
breach of fiduciary duty as such under both Illinois and Arizona law, a choice of law analysis is
unnecessary.
When dealing with intentional torts, the jurisdictional inquiry “focuses on whether the
conduct underlying the claim[ ] was purposefully directed at the forum state.” Felland, 682 F.3d
at 674 (alterations in original) (quoting Tamburo, 601 F.3d at 702). Courts look to whether the
defendant engaged in (1) intentional and allegedly tortious conduct, (2) expressly aimed at the
forum state, (3) with the knowledge that such conduct would injure the plaintiff in the forum
state. Tamburo, 601 F.3d at 703 (citing, inter alia, Calder v. Jones, 465 U.S. 783, 789-90, 104
S. Ct. 1482, 79 L. Ed. 2d 804 (1984)). “The defendant’s conduct and connection with the forum
state must be substantial enough to make it reasonable for the defendant to anticipate that he
could be haled into court there.” N. Grain Mktg., 743 F.3d at 492. In other words, “the plaintiff
cannot be the only link between the defendant and the forum. Rather, it is the defendant’s
conduct that must form the necessary connection with the forum State that is the basis for its
jurisdiction over him.” Walden, 134 S. Ct. at 1122 (citations omitted).
Judge Dow recently issued a carefully considered opinion examining the requirements of
the “express aiming test” for specific personal jurisdiction, see Mobile Anesthesiologists
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But see Kinzer ex. rel. City of Chicago v. City of Chicago, 539 N.E.2d 1216, 1220, 128 Ill. 2d
437, 132 Ill. Dec. 410 (1989) (breach of fiduciary duty guided by the substantive laws of agency, contract,
and equity).
7
Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 445 n.1 (7th Cir.
2010), under Seventh Circuit precedent and the recent Supreme Court case, Walden. See
Telemedicine Solutions LLC v. WoundRight Techs., LLC, -- F. Supp. 2d ---, No. 13 C 3431, 2014
WL 1020936, at **6-11 (N.D. Ill. Mar. 14, 2014). In discussing Seventh Circuit cases, Judge
Dow characterized the express aiming test as requiring a showing of “injury plus.” Id. at *9.
That is, the plaintiff must demonstrate not only that the defendant’s tortious act injured him in
the forum state, but that the defendant acted specifically to harm the plaintiff in the forum state.
See id. at *10. In Telemedicine, for example, the plaintiff alleged that the defendant intentionally
used the plaintiff’s trade name and mark in an advertisement, defaming and disparaging the
plaintiff and interfering with its business. But the court found that the plaintiff had not met all
elements of the express aiming test because “[t]he only connection between Defendants’
allegedly tortious ad and the forum state is Plaintiff’s location there.” Id. at *11. The
advertisement was not targeted at Illinois, had nothing to do with Illinois, and the defendant was
not active in the Illinois market.
By contrast, in the recent Seventh circuit case of Felland, the express aiming test was met
where the out-of-state defendant made intentional misrepresentations to the Wisconsin plaintiffs.
There, a Wisconsin couple vacationing in Arizona entered into a contract to purchase an
unfinished condominium in Mexico. 682 F.3d 669. After returning to Wisconsin, the couple
asked the developer for assurances that the unit would be finished on schedule. The developer
sent several communications to the couple in Wisconsin, including emails, letters, and telephone
calls, in which he assured them that the project was on schedule and asked them to continue
making installment payments on the unit. The project was not completed on time and the couple
sued in Wisconsin, arguing that the developer’s repeated communications were sufficient to
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allow the court to exercise personal jurisdiction over him. Id. at 669-70. The Seventh Circuit
agreed, determining that all three parts of the express aiming test were met. As for the first and
third elements, the defendant made intentional misrepresentations and there was “no doubt” that
the defendant knew the harm would be felt by the plaintiffs in Wisconsin. Id. at 675. And as for
the express aiming at the forum state element, the court found it to be satisfied because the
plaintiffs alleged the defendant’s communications lulled them into a false sense of security and
induced them to make further payments to the defendant. Id. at 675-76.
In cases similar to the one at hand, courts have found that a breach of fiduciary duty
claim against an out of state defendant supported the exercise of personal jurisdiction over the
defendant in Illinois. For example, in EEI Holdings Corp. v. Bragg, 947 F. Supp. 2d 913 (C.D.
Ill. 2013), an Illinois corporation brought suit in Illinois against a Pennsylvania corporation. The
plaintiff alleged that the defendant improperly dissipated collateral that was supposed to be held
in trust for the plaintiff, thereby breaching a fiduciary duty. Id. at 918-19. Based on this alleged
breach of fiduciary duty and the defendant’s knowledge that the plaintiff was an Illinois
corporation, the court found that the defendant “‘purposefully directed’ allegedly–tortious
conduct at the State of Illinois; thus, establishing minimum contacts.” Id. at 919.
Given the protracted nature of the business relationship and the related dispute between
Jackson and Bowen, the court cannot help but find that the express aiming test has been met. As
noted above, the first element of the express aiming test is met because Jackson alleges that
Bowen intentionally concealed N’Genuity documents, misappropriated funds, and engaged in
self-dealing transactions. The third element is met because Bowen was aware that Jackson
resided in Illinois and that his actions would harm Jackson there, given the prior interactions and
litigation between the parties. As for whether the conduct was expressly aimed at Illinois, this
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suit is distinguishable from a case like Telemedicine, in which the parties had no previous
business relationship and the defendant had no connection to Illinois that would allow it to be
haled into Illinois court. Instead, it is more like Felland or EEI Holdings, where the defendant’s
existing relationship with an in-state resident gave rise to jurisdiction. Bowen engaged in
allegedly tortious conduct that he directed at the state of Illinois. He had already been haled into
court once in this state for largely identical conduct. By continuing this conduct over the next
half decade, holding himself out as an employee or director of a corporation partly owned by an
Illinois resident and acting to Jackson’s detriment, Bowen directed his acts not only at Jackson,
but at the State of Illinois, and Jackson’s claim arose directly out of these activities. 9 See
Felland, 682 F.3d at 670 (plaintiffs’ harm arose out of defendant’s contacts with forum due to
defendant’s misrepresentations directed at plaintiffs in forum state).
2.
Traditional Notions of Fair Play and Substantial Justice
Finally, the court must consider whether the exercise of personal jurisdiction over Bowen
would offend traditional notions of fair play and substantial justice. See N. Grain Mktg., 743
F.3d at 492 (quoting Int'l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326
U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). The factors considered are “the burden on the
defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’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
9
Bowen rests much of his argument on the fact that in Jackson I, the court found it had specific
personal jurisdiction over Bowen based on Jackson’s civil conspiracy claim and supplemental jurisdiction
over Jackson’s breach of fiduciary duty and violation of the Arizona Business Corporation Act claim. See
Jackson I, 2010 WL 3025015, at *6. Despite Bowen’s insistence, however, the court did not directly
address whether those two claims failed to support specific personal jurisdiction absent the civil
conspiracy claim and thus Jackson I is not controlling.
10
furthering fundamental substantive social policies.” Felland, 682 F.3d at 677 (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct 2174, 85 L. Ed. 528 (1985)).
Bowen has been litigating the related 2009 suit in this forum and has retained attorneys
here. While Bowen may be burdened by having to defend another action in this state, “out-ofstate defendants always face such a burden.” Felland, 682 F.3d at 677 (emphasis in original).
Moreover, Illinois—like all states—has an interest in providing a forum for its residents to seek
redress for torts inflicted by out-of-state actors and injuries suffered within the state. From
Jackson’s perspective, this is the most convenient and effective forum to seek relief, and the
court’s intimate knowledge of the parties’ history further supports an exercise of jurisdiction.
That a bankruptcy court in Arizona is presiding over related issues does not strip this court of
jurisdiction over Bowen. Thus exercising personal jurisdiction over Bowen does not run afoul of
traditional notions of fair play and substantial justice.
II.
Venue
Bowen also moves to dismiss for improper venue pursuant to Federal Rule of Civil
Procedure 12(b)(3). See Fed. R. Civ. P. 12(b)(3); Caballero v. Taylor, No. 12 C 8645, 2013 WL
2898254, at *1 (N.D. Ill. June 13, 2013). When a defendant challenges venue, the plaintiff bears
the burden of establishing venue is proper. Nat’l Tech., Inc. v. Repcentric Solutions, No. 13 C
1819, 2013 WL 3755052, at *5 (N.D. Ill. July 16, 2013) (citing Int’l Travelers Cheque Co. v.
BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981)). If venue is improper, the court may
either dismiss the suit or transfer it to a district in which the plaintiff could have filed it initially.
See 28 U.S.C. § 1406(a). Venue can be proper in more than one court. See Armstrong v.
LaSalle Bank Nat’l Ass’n, 552 F.3d 613, 617 (7th Cir. 2009).
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The proper bases for venue are found in 28 U.S.C. § 1391(b), which provides that 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 with respect to such action.
28 U.S.C. § 1391(b). For venue to be proper under section 1391(b)(2), “[t]he test is not whether
a majority of the activities pertaining to the case were performed in a particular district, but
whether a substantial portion of the activities giving rise to the claim occurred in the particular
district.” TruServ Corp. v. Neff, 6 F. Supp. 2d 790, 792 (N.D. Ill. 1998) (citation omitted).
“[F]or events to be considered ‘substantial’ under the statute, it is sufficient for the plaintiff to
establish that the events occurring in the forum district ‘were part of the historical predicate for
the instant suit.’” Estate of Moore v. Dixon, 460 F. Supp. 2d 931, 936 (E.D. Wis. 2006) (quoting
Master Tech Prods., Inc. v. Smith, 181 F. Supp. 2d 910, 914 (N.D. Ill. 2002)). These events
must have a “close nexus” to the plaintiff’s alleged claim. Moore, 460 F. Supp. 2d at 936
(quoting Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 433 (2d Cir. 2005)). For example,
a plaintiff alleging fraudulent misrepresentation can establish venue under section 1391(b)(2) in
the venue to which the fraudulent communication was sent. See, e.g., Mercantile Capital
Partners v. Agenzia Sports, Inc., No. 04 C 5571, 2005 WL 351926, at *5 (N.D. Ill. Feb. 10,
2005) (venue proper in Northern District of Illinois where defendant sent letter containing false
representations to plaintiff in here).
12
Bowen argues that venue is not proper here because a substantial number of activities
giving rise to Jackson’s claim occurred outside this district. But Jackson alleges that prior to
2008, Bowen contacted Jackson regularly regarding N’Genuity, supplying the historical
predicate for this suit. Moreover, Bowen, on behalf of N’Genuity, provided false and misleading
materials to Jackson in Illinois through N’Genuity’s counsel. (Dkt. 24, Ex. 7.) This conduct
makes venue appropriate in this district.
CONCLUSION
For the foregoing reasons, Bowen’s motion to dismiss under Rule 12(b)(2) for lack of
personal jurisdiction and Rule 12(b)(3) for improper venue (dkt. 13) is denied. The parties shall
report for the previously scheduled status hearing on August 28, 2014 at 11:15 a.m.
Date: August 28, 2014
_______________________________________
U.S. District Judge Joan H. Lefkow
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