Mendicino v. Dowe Gallagher Aerospace LLC

Filing 20

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 3/27/2017: For the reasons stated, the Court grants Dowe Gallagher's motion to dismiss [dkt. no. 8] and directs the Clerk to enter judgment dismissing plaintiff's complaint for lack of personal jurisdiction. The status hearing and ruling date of March 30, 2017 is vacated. Defense counsel's motion to appear at that hearing telephonically [dkt. no. 17] is terminated as moot. Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FRANK MENDICINO,
Plaintiff,
vs.
DOWE GALLAGHER AEROSPACE LLC,
Defendant.

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Case No. 16 C 10372

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Frank Mendicino is a former employee of Dowe Gallagher Aerospace. He has
filed suit against Dowe Gallagher, alleging national origin discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964. Dowe Gallagher has moved to
dismiss for lack of personal jurisdiction. For the reasons stated below, the Court grants
Dowe Gallagher's motion.
Facts
Mendicino, an Illinois resident, worked for Dowe Gallagher as a pilot. His
position required international travel to carry out his work assignments. On or about
February 15, 2015, while on assignment in the Seychelles, Mendicino dined with Mike
Celec and two other persons. Mendicino alleges that during dinner, Celec called him a
"guinea," a derogatory reference to his Italian heritage. Compl. ¶ 19. After Mendicino
told Celec "that is offensive," Celec responded, "well, you don't believe in God, so it
doesn't matter." Id. ¶ 21. Celec called Mendicino a "Guinea" two additional times at

dinner. Id.. ¶¶ 22-24. After the final time, Mendicino left money on the table and
departed.
On April 7, 2015, Mendicino sent a written complaint about Celec's discriminatory
comments to Dowe Gallagher. Dowe Gallagher later terminated Mendicino.
Mendicino filed a charge of discrimination with the Equal Employment
Opportunity Commission, alleging Dowe Gallagher violated Title VII. After receiving a
notice of right to sue, Mendicino filed this lawsuit. He asserts that Dowe Gallagher and
its agents discriminated against him because of his national origin and terminated him in
retaliation for his complaint regarding Celec's discriminatory conduct.
Discussion
Dowe Gallagher has moved to dismiss under Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction. A plaintiff bears the burden to show that
personal jurisdiction exists over the defendant. Tamburo v. Dworkin, 601 F.3d 693, 700
(7th Cir. 2010). When the challenge to personal jurisdiction is raised by a motion to
dismiss and is, as in this case, decided based on written materials instead of an
evidentiary hearing, the plaintiff need only make out a prima facie case of jurisdiction.
Id.; N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). if the defendant
submits affidavits to support its motion, the plaintiff must "submit affirmative evidence
supporting the exercise of jurisdiction." Purdue Research Found. v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 783 (7th Cir. 2003). The Court resolves factual disputes in favor of
the plaintiff. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012).
Under the Illinois long-arm statute, a federal court may exercise personal
jurisdiction if either the Illinois Constitution or the United States Constitution permits the

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court to do so. Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston
Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010). The Seventh Circuit has held that
there is no meaningful difference between these constitutional limits on personal
jurisdiction. State of Illinois v. Hemi Grp. LLC, 622 F.3d 754, 757 (7th Cir. 2010). Thus
the Court need only determine whether the exercise of personal jurisdiction would
comport with federal due process. Mobile Anesthesiologists, 623 F.3d at 443.
The parties agree that the Court does not have general jurisdiction over Dowe
Gallagher. Instead, their dispute concerns whether the Court may assert specific
jurisdiction. To determine whether specific jurisdiction exists, the Court examines the
nature of the defendant's contacts with the forum state in relation to the underlying
claims of the lawsuit. Tamburo, 601 F.3d at 701-02. Specific jurisdiction is appropriate
when the non-resident defendant has purposefully directed its activities at the forum
state and the alleged injury arises out of or relates to those activities. Mobile
Anesthesiologists, 623 F.3d at 444 (citing Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985)).
Dowe Gallagher has submitted an affidavit from its executive vice president,
Joseph Fucci. He states, and Mendicino does not dispute, that Dowe Gallagher is a
Delaware company with its principal place of business and only corporate office in
Florida. Mendicino likewise does not dispute Fucci's statement that Dowe Gallagher
"does no business in Illinois, has no employees in Illinois and maintains no offices in
Illinois." Fucci Decl. ¶ 5. Nor does Dowe Gallagher have a telephone number, mailing
address, real estate, bank accounts or assets in Illinois.

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Dowe Gallagher argues that its only relevant contact with Illinois is that it hired an
Illinois resident, Mendicino, to perform a job overseas. This is not sufficient, Dowe
Gallagher maintains, to confer specific jurisdiction consistent with due process.
Mendicino argues that Dowe Gallagher has sufficient contacts with Illinois to
permit the exercise of specific jurisdiction. In his affidavit, Mendicino states that Dowe
Gallagher initiated hiring discussions with him while he was an Illinois resident—though
he concedes he was "deployed to Chania, Greece" at the time. Mendicino Decl. ¶ 6.
He also contends that Dowe Gallagher maintained a connection with the state when it
regularly communicated with him when he was in Illinois. Finally, Mendicino argues that
Dowe Gallagher's contact with Illinois persisted throughout their employment
relationship. Dowe Gallagher ordered Mendicino to travel to and from Illinois for his
assignments and paid for that travel, and the company paid his wages into an Illinois
bank account, and terminated him over the phone when he was physically in Illinois.
These contacts with Illinois are enough, Mendicino argues, to establish specific
jurisdiction.
The Court finds instructive the Seventh Circuit's decision in Northern Grain
Marketing, in which the court found the defendant's Illinois contacts insufficient to
support jurisdiction here. There the plaintiff, an Illinois grain buyer, contracted with the
defendant, a Wisconsin farmer, to purchase grain. The Wisconsin defendant met the
Illinois plaintiff in Illinois and later entered into a series of grain purchase contracts with
the plaintiff. N. Grain Mktg., 743 F.3d at 489-90. The defendant knew that the plaintiff
was located in Illinois, and the plaintiff paid the defendant with checks drawn on Illinois
banks. Id. at 490. However, the defendant produced grain in Wisconsin and delivered

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it to grain elevators located in that state. Id. Although the defendant knew he had
contracted with an Illinois plaintiff, the Court found the defendant's contacts insufficient
to support personal jurisdiction in Illinois. The negotiations that led to the formation of
the parties' contractual relationship did not take place in Illinois, and the contract called
on the defendant to perform in a state other than Illinois. Id. at 496. The court
concluded that the defendant "did not purposefully avail himself of the privilege of
conducting business in Illinois." Id.
The present case is similar. Dowe Gallagher knew it hired an Illinois resident,
but the contacts that led to the parties' relationship took place remotely, while Mendicino
was working in Greece. And although Mendicino emphasizes that he traveled to and
from Illinois to conduct his work assignments for Dowe Gallagher, the company
assigned him to the Seychelles to fly planes in that region. Mendicino performed his
employment duties outside Illinois; his travels to and from Illinois were only incidental to
performing those duties.
Dowe Gallagher may have reached into Illinois when it sent work assignments to
Mendicino's e-mail address (though it's not clear these actually were contacts with
Illinois if and when Mendicino was located elsewhere) and when it sent paychecks to his
Illinois bank account. But Mendicino's Title VII claim does not arise out of these
contacts. See generally GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018,
1024 (7th Cir. 2009) (declining to "simply aggregate all of a defendant's contacts with a
state . . . as evidence of the constitutionally-required minimum contacts" (citation
omitted)). Rather, the alleged discriminatory conduct occurred when Mendicino was in
the Seychelles, not Illinois. And Mendicino does not contend that Dowe Gallagher had

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any contact with Illinois in connection with its termination of his employment. Cf. Krok v.
Burns & Wilcox, Ltd., No. 98 C 5902, 1999 WL 262125, at *4 (N.D. Ill. Apr. 16, 1999)
(finding specific jurisdiction over a non-resident employer where the employer's
executives visited the plaintiff in Illinois to terminate his employment).
As the Seventh Circuit has stated, "contracting with an out-of-state party alone
cannot establish automatically sufficient minimum contacts in the other party's home
forum." See Purdue Research Found., 338 F.3d at 781 (citing Burger King, 471 U.S. at
478). In this case, when one "take[s] into account prior negotiations, contemplated
future consequences, the terms of the contract and the parties' course of actual dealing
with each other," id., it is apparent that the requisite minimum contacts between Dowe
Gallagher and Illinois are lacking.
Conclusion
For the reasons stated above, the Court grants Dowe Gallagher's motion to
dismiss [dkt. no. 8] and directs the Clerk to enter judgment dismissing plaintiff's
complaint for lack of personal jurisdiction. The status hearing and ruling date of March
30, 2017 is vacated. Defense counsel's motion to appear at that hearing telephonically
[dkt. no. 17] is terminated as moot.
Date: March 27, 2017
________________________________
MATTHEW F. KENNELLY
United States District Judge

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