Bental & Company, LLC v. Schraubenwerk Zerbst GmbH

Filing 19

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/2/2017:Mailed notice(wp, )

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

BENTEL & COMPANY, LLC, a
Texas Limited Liability
Company,
Plaintiff,

Case No.

v.

16 C 11479

Judge Harry D. Leinenweber

SCHRAUBENWERK ZERBST GmbH, a
Foreign Limited Liability
Company,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss under
Rule 12(b)(2) and Rule 12(b)(3) [ECF No. 10].
stated

herein,

the

Motion

under

forum non conveniens grounds.

Rule

12(b)(3)

For the reasons
is

granted

on

The Court will issue an Order of

Dismissal upon receipt of Schraubenwerk Zerbst GmbH’s written
statement agreeing to the conditions enumerated herein.
I.
A.
Plaintiff
management

and

Bental

Factual Background
&

consulting

business in Toledo, Ohio.
(“Pl.’s Br.”) at 2.)

BACKGROUND

Company,
company

LLC
with

(“Bental”)
a

is

principal

a

Texas

place

of

(ECF No. 1 (“Compl.”) ¶ 1; ECF No. 15

Bental’s sole member and owner, Lothar

Bauerle (“Bauerle”), resides in the Toledo, Ohio area.

(Pl.’s

Br., Ex. B (“Bauerle Decl.”) ¶ 3.)

Early in 2010, Bauerle

contacted several component and subsystem manufacturers in the
wind

power

industry,

including

Defendant

Schraubenwerk

Zerbst

GmbH (“SZ”), to see if they would be attending an upcoming wind
power exhibition in the U.S. (Compl. ¶¶ 12-13; Bauerle Decl.
¶¶ 7-8.)
and

SZ is a German company that manufactures forged bolts

hot-formed

fasteners

for

use

including the wind power industry.
Ex. A (“Schmidt Decl.”) ¶ 10.)

in

various

industries,

(ECF No. 11 (“Def.’s Mem.”),

One of SZ’s principals informed

Bauerle that no SZ representative would be attending but that SZ
was

willing

to

follow

up

with

him

after

the

exhibition

discuss the state of the American wind power market.

to

(Bauerle

Decl. ¶¶ 9-10.)
At some point after the exhibition and during the summer of
2010, Bauerle proposed to SZ that he scout for new potential SZ
customers in the three NAFTA countries – Mexico, the U.S., and
Canada.

(Schmidt

Decl.

traveled

to

place

negotiating

SZ’s
an

¶¶

agreement

14-15.)

of

business

that

would

In
in

July

2010,

Germany

govern

to

the

to

Ohio,

engaged

in

additional

telephone

begin

Bental-SZ

relationship. (Id. ¶¶ 17-19; Bauerle Decl. ¶¶ 13-14.)
returned

Bauerle

Bauerle

and

email

discussions with SZ, and ultimately signed an August 1, 2010
final version of the agreement (“the Commission Agreement”) upon
- 2 -

its

transmission

from

SZ’s

German

office

to

him

(Schmidt Decl. ¶¶ 19-20; Bauerle Decl. ¶¶ 13-14.)
the

Commission

immediate

Agreement

effect

act

provided

as

that

representative

in

Ohio.

As relevant,

“Bental

of

shall

[SZ]

the

in

with
Nafta

states (USA, Canada, Mexico), in the fastener product groups
‘Wind

Power,’

‘Rail

Applications’.”
duties

were

customer

Track,’

and

other

‘Industrial

(Pl’s Br., Ex. B at Att. 1 ¶ 1.)
“perform[ing]

contacts,

market

receiv[ing]

analyses,

relevant

establish[ing]

client

inquiries

subsequent projects, and forward[ing] them to [SZ].”
see, Schmidt Decl. ¶ 22.)
support

to

Bental

and

provided

bear

commission

of

that

SZ

5%

after

and

(Id. ¶ 3;

SZ agreed to provide informational
travel

costs

carrying out his duties. (Id. ¶ 4.)
also

Bental’s

would

“pay

Bauerle

incurred

in

The Commission Agreement
Bental

conclusion

of

a

each

performance-based
quarter

of

the

calendar year” but, because no commissionable projects existed
at the time of execution, SZ agreed to pay “Bental monthly a
retainer of 1,000.00 US Dollars” to be adjusted based on SZ’s
prospects

for

successful

projects

and

Bental’s

“acquisition

expenses.” (Id. ¶ 5.)

The $1,000 payment along with travel

reimbursements

cease

were

to

once

SZ

commenced

commission

payments on eligible projects – that is, once Bental’s efforts
bore fruit in the form of SZ sales to new clients. (Ibid.)
- 3 -

Each

party

had

the

right

to

terminate

“subject

to

a

three-month

period of cancellation,” and in such a scenario, Bental was to
receive

commission

provided

they

termination

lead

date

payments
to

of

a

“for

contract

the

the

worked-on

projects,

24

from

within

agreement.”

(Id.

months
¶¶

the

6-7.)

The

Commission Agreement did not specify a governing law or choice
of forum.
In furtherance of Bental’s responsibilities, SZ printed and
provided Bental with business cards containing SZ’s logos, its
website

address,

reachable
Att. 3.)

at

and

Bental’s

SZ

Representation”

also
on

titling
Ohio

Bauerle

address.

listed

as

(Bauerle

designated

letterhead

and

“Project

in

materials. (Id. ¶¶ 21-22 & Atts. 4-5.)

Manager”

Decl.

¶

as

its

Bental
certain

20

&

“US

presentation

Other than as detailed

below, SZ has never had any contacts with Illinois.

(See, e.g.,

Schmidt Decl. ¶¶ 5-9.)
Bental proposed to SZ several potential Illinois targets,
and SZ approved its approaching Nordex USA, Inc., a Chicagoheadquartered division of Nordex Global.

(Bauerle Decl. ¶¶ 23-

24 (According to Bauerle, SZ also entered into non-disclosure
agreements

(“NDAs”)

with

two

Illinois

entities

governed

by

Illinois law, but with whom SZ did not ultimately establish a
relationship. (Id. ¶ 25.))

Since 2006, SZ has had a business
- 4 -

relationship with Nordex Global, to whom it supplies various
hardware and fastener components.

(Schmidt Decl. ¶¶ 25, 27.)

On August 16, 2010, Bauerle sent a letter to Nordex USA’s
purchasing

manager,

acknowledging

SZ’s

gratitude

for

Nordex

Global’s business and that “[t]hrough my diligent work Zerbst
would like to become an approved direct supplier to Nordex USA,
Inc.” (Bauerle Decl. ¶¶ 26-27 & Att. 6.)

He requested a meeting

to determine the feasibility of SZ directly supplying Nordex
USA,

whose

Arkansas.
letter,

production

(Ibid.;

Bental

see,

and

SZ

facility
Schmidt
were

was

located

Decl.

¶

granted

in

24.)

access

Jonesboro,

Following
to

Nordex

the

USA’s

“electronic ‘ShareFile’ folder maintained in Chicago, Illinois
containing

the

necessary

information

for

SZ

to

compete

for

Nordex business in the U.S.” (Pl.’s Br. at 4-5 (citing Bauerle
Decl.

¶

28).)

proposals,

Bental

and

then

submitted

(Bauerle Decl. ¶ 29.)

prepared

them

to

SZ-approved

Nordex

USA

quotes
in

and

Chicago.

Bauerle alleges that his overtures to

Nordex USA convinced it to partner with SZ, resulting in the
placement

of

its

February 2011.
USA,

SZ

never

entity.”).)

first

purchase

orders

for

SZ

products

in

(Id. ¶¶ 30, 32 (“Prior to my contact with Nordex
sold

any

of

its

products

directly

to

that

Although ostensibly beyond the ambit of Bental’s

duties under the Commission Agreement, Bauerle also translated
- 5 -

emails

from

English

communications

between

to
SZ

German,
and

its

and
U.S.

vice

versa,

customers,

for

including

Nordex USA. (Id. ¶¶ 17-18.)
When Nordex USA placed purchase orders for SZ products, it
emailed them to Bental’s Ohio office, and Bauerle then forwarded
them

to

SZ

along

with

Nordex

USA’s

qualifications,

specifications, and drawings. (Bauerle Decl. ¶ 31.)
supplied
products;

Nordex
no

USA’s

SZ

product

(Schmidt Decl. ¶ 24.)
SZ

and

Bental

Arkansas
was

facility
ever

with

shipped

SZ then

the

requested

into

Illinois.

Thanks to Nordex USA’s purchase orders,

amended

the

Commission

Agreement

effective

February 14, 2012 through a course of dealing shorter than but
otherwise similar to that characterizing its initial negotiation
– in-person discussions in Germany and subsequent Ohio-Germany
communications, with each party signing the final agreement from
its home office.

(Id. ¶¶ 32-34; Bauerle Decl. ¶¶ 14-15.)

Gone

were the $1,000 monthly retainer and travel reimbursements, in
favor

of

a

fixed

schedule

of

commissions

under

which

Bental

received 5 percent of sales per calendar year up to €400,000,
4 percent of sales in the €400,000-500,000 range, and 3 percent
of sales in excess of €500,001.

(Pl.’s Br., Ex. B at Att. 2.)

When Bental’s commission payments came due, SZ initiated wire
transfers to Bauerle’s Ohio bank account – sometimes paying him
- 6 -

in

Euros

and

other

times

in

U.S.

Dollars.

(Compare,

Bauerle

Decl. ¶ 19; with, Schmidt Decl. ¶ 36.)
Nordex USA’s purchases from SZ were governed by General
Purchasing Conditions (“GPC”), which applied “in relations with
companies, public law bodies and any other third party entity
providing Services (‘Supplier’).”
¶ 1.1.)

(Pl.’s Br., Ex. B at Att. 8

The terms of the GPC were “governed by and construed in

accordance

with

the

laws

of

the

state

of

Illinois,”

and

initially the parties agreed to “submit to exclusive personal
jurisdiction in Illinois” and “waive any and all personal right
under

the

law

of

any

jurisdiction

to

object

on

any

basis

(including inconvenience of the forum) to jurisdiction or venue
within Illinois for the purpose of litigation to enforce these
GPC.” (Id. ¶¶ 15-16.)

However, on March 22, 2011 - six weeks

after initial execution of the GPC – SZ and Nordex USA replaced
the forum selection clause with language mandating that disputes
exceeding $1,000,000 “shall be submitted by either Party to the
American

Arbitration

Chicago, Illinois.”

Association

for

binding

arbitration

in

(Id. ¶ 16.1 (Revised).)

In September 2012, Nordex USA informed Bental of missing
parts it had purchased from SZ related to installation of wind
turbines

for

¶¶ 48-50.)

a

project

in

Beebe,

Michigan.

(Bauerle

Decl.

SZ prepared a letter to Nordex USA confirming that
- 7 -

Bental “was acting as an ‘agent’ of SZ and that SZ was ‘directly
and exclusively liable for all activities’ performed” by Bental
related to this issue. (Id. ¶ 50.)
SZ

terminated

April 2015.
least

the

Commission

Agreement

(as

amended)

in

By then, Bauerle had traveled to Chicago “on at

eight

(8)

separate

occasions

on

behalf

of

SZ”

initiating contact with Nordex USA in August 2011.
Decl. ¶ 40.)

since

(Bauerle

SZ sold approximately $2.3 million of products to

Nordex USA between 2011 and 2013, paying Bental an estimated
€42,000 and over $10,000 in commissions on those sales. (Id.
¶¶ 41-42.)

However, Bental claims that SZ still owes it some

$50,000 in commissions on sales to Nordex USA (and over $100,000
on sales to Florida-based Siemens). (Id. ¶¶ 43-47.)
B.
To

recover

at

Procedural Background
least

some

of

these

allegedly

unpaid

commissions, Bental retained German counsel to issue a demand
letter

on

May

21,

2015,

provisions of German law.
In

a

June

22,

2015

making

claims

on

SZ

under

specific

(See, generally, Pl.’s Br. at Ex. A.)

response

letter,

SZ’s

counsel

asked

for

substantiation of Bental’s claims and asserted that SZ had in
fact remitted unearned commission payments to Bental in 2013 and
2014.

(See,

id.

§

2.)

SZ

thus

- 8 -

sought

repayment

of

those

commissions

under

German

“tort

law”

and

“law

of

unjust

enrichment.” (Ibid.)
Bental then filed suit against SZ on September 9, 2015 in
the

Northern

District

of

Ohio.

See,

Bental

&

Co.,

LLC

Schraubenwerk Zerbst GmbH, No. 3:15 C 1833 (N.D. Ohio).

v.
The

parties fully briefed the issue of SZ’s personal jurisdiction,
and on September 21, 2016, the court dismissed the case for lack
of personal jurisdiction under Ohio’s long-arm statute.

See,

generally, Bental, 2016 WL 5173327 (N.D. Ohio Sept. 21, 2016).
The court found that Bental failed to demonstrate that “SZ’s
contacts with Ohio, either directly or through Bental as its
alleged agent, give rise to its cause of action for failure to
pay commissions.” Id. at *3.

The court noted the absence of

evidence that Bental’s “activities were commissionable under the
parties’

contract,

and

(2)

if

so,

that

its

cause

of

action

‘arises from’ those activities as required per Ohio Revised Code
§

2307.382(C).”

Ibid.

(“[E]ven

if

I

found

SZ

transacted

business in Ohio, [Bental] does not show its causes of action
‘arise from’ those contacts.”) (citation omitted).
Bental filed its Complaint in this case on December 20,
2016,

asserting

the

same

four

causes

of

action:

breach

of

contract, violation of the Ohio and Illinois statutes governing
sales commissions, and unjust enrichment.
- 9 -

SZ seeks dismissal of

these

claims

for

lack

of

personal

jurisdiction

under

Rule 12(b)(2) or, in the alternative, pursuant to the forum non
conveniens doctrine under Rule 12(b)(3).
II.
A.

ANALYSIS

SZ’S Rule 12(b)(2) Motion to Dismiss

The issue presented is whether SZ’s business relationship
with

Chicago-based

Nordex

USA

and

its

other

contacts

with

potential customers headquartered in Illinois – alone or through
Ohio-based Bental as its putative agent – subject SZ to personal
jurisdiction

in

this

case

for

breach

of

the

Commission

Agreement, under which allegedly unpaid commissions are keyed to
SZ’s sales to Nordex USA.

The Court finds that SZ indeed has

minimum contacts in Illinois sufficiently related to the conduct
giving

rise

to

the

alleged

breach

exercising specific jurisdiction.

of

contract

to

justify

Doing so is not inconsistent

with traditional notions of fair play and substantial justice.
1.
A

complaint

jurisdiction

but

Rule 12(b)(2) Legal Standard
need
when

not
a

include

facts

defendant

alleging

challenges

personal
personal

jurisdiction under FED. R. CIV. P. 12(b)(2), the plaintiff bears
the burden of proving that jurisdiction exists.

Purdue Res.

Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003).

Where, as here, the Court rules on a motion to dismiss
- 10 -

for lack of personal jurisdiction based on the submission of
written materials – and not based on evidence presented at an
evidentiary hearing – the plaintiff “need only make out a prima
facie case

of

personal

jurisdiction.”

Hyatt

Coco, 302 F.3d 707, 713 (7th Cir. 2002).

Int’l

Corp.

v.

In evaluating whether

the prima facie standard has been satisfied, the plaintiff “is
entitled

to

the

resolution

in

its

favor

of

all

concerning relevant facts presented in the record.”

disputes

Purdue, 338

F.3d at 782 (citations, quotation, and internal quotation marks
omitted).
A district court may exercise jurisdiction only if both the
state

and

federal

constitutional

requirements

are

satisfied.

Illinois v. Hemi Group LLC, 622 F.3d 754, 756 (7th Cir. 2010).
Where subject matter jurisdiction rests on diversity under 28
U.S.C. § 1332, personal jurisdiction turns on the law of the
forum state.
statute

Hyatt, 302 F.3d at 713.

authorizes

permitted

by

the

Stat. 5/2-209(c).

personal

jurisdiction

federal

The Illinois long-arm

However,

to

the

full

extent

Constitution.

735

Ill.

Comp.

because

permits

Illinois

personal

jurisdiction if it would be authorized by either the Illinois or
United

States

Constitutions,

the

constitutional requirements merge.

state

statutory

federal

uBID, Inc. v. The GoDaddy

Group, Inc., 623 F.3d 421, 425 (7th Cir. 2010).
- 11 -

and

There are two variants of personal jurisdiction:
and “specific.”

General jurisdiction is proper only when the

defendant

has

state

question

in

personal

“continuous
such

jurisdiction

neither

arise

contacts.

“general”

out

that

over

of

and

systematic”
a

the

nor

contacts

district

court

defendant

relate

to

even

the

with

may
in

the

exercise

cases

defendant’s

that
forum

Specific jurisdiction, on the other hand, is a more

limited assertion of state power in which personal jurisdiction
exists for controversies that arise out of or are related to the
defendant’s forum contacts.

See, Hyatt, 302 F.3d at 713.

Finally, even if a court finds that the minimum contacts
and specific jurisdiction requirements have been met, its due
process inquiry does not end.

It must also consider whether the

exercise of personal jurisdiction comports with “fair play and
substantial justice.”

Burger King Corp. v. Rudzewicz, 471 U.S.

462, 476 (1985) (quoting Int’l Shoe Co. v. State of Washington,
326 U.S. 310, 320 (1945)).
2.
Bental

Specific Jurisdiction over SZ

concedes

that

jurisdiction over SZ.
application

and

this

Court

analysis

Bental

not

have

general

(See, Pl.’s Br. at 9 (“BENTAL suggests
of

only

necessary in the present case.”).)
concession,

does

could

not

specific

is

Even if it didn’t make this

advance

- 12 -

jurisdiction

a

colorable

general

jurisdiction argument.
that

the

plaintiff’s

See, Hyatt, 302 F.3d at 713 (explaining
only

option

is

to

establish

specific

jurisdiction where a defendant’s contacts with the forum state
are more limited).

If jurisdiction inheres in this controversy,

it is on the basis of specific jurisdiction such that the harm
to Bental must have arisen out of SZ’s contact with Illinois.
Exercise of specific jurisdiction is appropriate where (1)
the defendant has purposefully directed its activities at the
forum state or purposefully availed itself of the privilege of
conducting business in that state, and (2) the alleged injury
arises out of the defendant’s forum-related activities.

Tamburo

v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010).
a.

Minimum Contacts and Purposeful Availment

The Court takes as its starting point the guiding principle
that “an out-of-state party’s contract with an in-state party is
alone not enough to establish the requisite minimum contacts”
with the forum State in a breach of contract action.

RAR, Inc.

v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997)
(citing Burger King, 471 U.S. at 478).

This means that neither

SZ’s contracting with Nordex USA, nor its execution of NDAs with
two

other

establish
particularly

Chicago-based
minimum

potential

contacts

justified

where

here.
the

- 13 -

customers,
Such
contract

suffices

to

restraint

seems

with

forum

the

resident is
Other

not

links,

the

such

contract

as

prior

alleged

to

have

negotiations,

been

breached.

contemplated

future

consequences, the terms of the contract, and the parties’ actual
course

of

dealing,

may

demonstrate

that

the

purposefully availed itself of the forum.

defendant

has

Philos Techs., Inc.

v. Philos & D, Inc., 802 F.3d 905, 913 (7th Cir. 2015).

And, of

course, the defendant need not have been physically present but
only to have acted indirectly within the forum state.

See,

Heritage House Rests., Inc. v. Continental Funding Group, Inc.,
906 F.2d 276, 281 (7th Cir. 1990).

That said, “a physical

presence in the forum State may satisfy the requisite contacts
for

jurisdiction,

especially

when

a

representative

of

the

foreign corporation is directing marketing efforts at the forum
State.” Tile Unlimited, Inc. v. Blanke Corp., 47 F.Supp.3d 750,
762 (N.D. Ill. 2014) (citations omitted).
The non-party contracts are not SZ’s only contacts with
Illinois.

Minimum contacts sufficient for personal jurisdiction

over a nonresident entity may be established through an agent of
the entity.
(2014)

See, e.g., Walden v. Fiore, 134 S.Ct. 1115, 1122

(“[P]hysical

entry

into

the

State

–

either

by

the

defendant in person or through an agent, goods, mail, or some
other

means

–

is

certainly

a

relevant

contact.”)

(emphasis

added) (citation omitted); Wisconsin Elec. Mfg. Co. v. Pennant
- 14 -

Prods., Inc., 619 F.2d 676, 677-78 (7th Cir. 1980) (visits by
defendant’s agents to forum state in order to negotiate with
plaintiff were “significant in the formation of the contract”
and

constituted

process);

sufficient

CapGain

Props.

contact

Inc.

v.

so

as

to

Landmaster

satisfy

Partners,

due
LLC,

No. 15 C 9234, 2016 WL 3035534, at *2-3 (N.D. Ill. May 29,
2016).

To establish agency, the alleged agent must have either

actual

or

apparent

authority

from

the

principal,

or

the

principal must “ratify” the unauthorized agent’s actions through
later conduct.

Anetsberger v. Metro, Life Ins. Co., 14 F.3d

1226, 1234 (7th Cir. 1994); see, ABN AMRO, Inc. v. Capital Int’l
Ltd., 595 F.Supp.2d 805, 821 (N.D. Ill. 2008).

A principal

ratifies an action that the agent lacked authority to take by
later

retaining

the

benefits

flowing

from

the

action.

See,

e.g., Advance Mortg. Corp. v. Concordia Mut. Life Ass’n, 481
N.E.2d 1025, 1030-31 (Ill. App. 1985) (“[E]ven if we were to
find that Advance, as an agent for Concordia, acted outside its
authority, Concordia retained the benefits of Advance’s action
such as to constitute a ratification thereof.”).
The Court finds that Bauerle acted with actual authority
sufficient for his Illinois contacts to inure to SZ when, for
example, he made initial overtures to Nordex USA about doing
business with SZ and drove to Chicago at least eight times to
- 15 -

meet with Nordex USA personnel regarding its relationship with
SZ.

In addition, Bental has adduced sufficient evidence of its

apparent authority to bind SZ to commitments regarding Nordex
USA, given its status as SZ’s U.S. representative on business
cards and in other outward statements to which Nordex USA was
likely

exposed.

(Bental

even

adduced

evidence

that

SZ

made

statements specifically to Nordex USA designating Bauerle as its
agent with respect to certain problems attending Nordex USA’s
Beebe,

Michigan

wind

farm

project.)

At

the

very

least,

SZ

ratified the benefits of Bental’s efforts when it entered into
and maintained a business relationship with Nordex USA on these
terms until 2013 – a relationship pursuant to which it sold over
$2 million worth of product to Nordex USA.

See, Walden, 134

S.Ct. at 1122 (“[W]e have upheld the assertion of jurisdiction
over defendants who have purposefully ‘reached out beyond’ their
State and into another by, for example, entering a contractual
relationship

that

‘envisioned

continuing

and

wide-reaching

contacts’ in the forum State . . . .”) (quoting Burger King, 471
U.S. at 479-80) (brackets omitted).

The situation here is not

one in which “the unilateral activity of the plaintiff or some
other entity” is being imputed to SZ.

Purdue, 338 F.3d at 780.

On the contrary, Bauerle directed his activities to Nordex USA
and Illinois with SZ’s approval, at its behest, and in order to
- 16 -

benefit it - with no shortage of representations that this was
the case.
The Court therefore finds that SZ has minimum contacts with
Illinois.
b.

Relatedness

Establishing minimum contacts is only the first part of the
inquiry, and alone they are insufficient to support exercise of
specific personal jurisdiction.

Rather, it is essential that

the plaintiff’s claim arise out of or relate to the defendant’s
minimum contacts with the forum state.

uBID, 623 F.3d at 429.

As the RAR court noted, “[w]e cannot simply aggregate all of a
defendant’s contacts with a state – no matter how dissimilar in
terms of geography, time, or substance – as evidence of the
constitutionally required minimum contacts.”
1277.

RAR, 107 F.3d at

The action “‘must directly arise out of the specific

contacts between the defendant and the forum state.’” Id. at
1278 (emphasis in original) (quoting Sawtelle v. Farrell, 70
F.3d 1381, 1389 (1st Cir. 1995)).
In this case, SZ argues strenuously that its contacts with
Illinois

are

Commission
jurisdiction.
is

only

the

unrelated
Agreement,

to

Bental’s

and

thus

suit
cannot

for

breach

ground

of

the

specific

SZ is correct that, per the Seventh Circuit, “it
‘dealings

between

the

- 17 -

parties

in

regard

to

the

disputed

contract’

analysis.”
(quoting

RAR,

that
107

Vetrotex

are

F.3d

relevant
at

Certainteed

1278

Corp.

to

minimum

(emphasis
v.

Consol.

Prods. Co., 75 F.3d 147, 153 (3d Cir. 1996)).

in

contacts
original)

Fiber

Glass

But the parties’

dealings in regard to the disputed agreement – that is, the
respective

conduct

allocating

SZ’s

of

Bental

liability

and

under

SZ
the

to

be

adjudicated

Commission

in

Agreement

–

“lie[] in the wake of [SZ’s] commercial activities in Illinois”
and Florida.

Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726

F.2d 1209, 1215-16 (7th Cir. 1984) (“[T]he discussions that took
place in Illinois between [a manufacturer’s representative] and
[the

defendant’s

sole

shareholder]

played

a

part

in

the

subsequent [out-of-state] negotiations between [the latter] and
the

plaintiff,

which

led

to

the

contract

between

[the

manufacturer] and the plaintiff.”).
Whether Bental can recover under the Commission Agreement
turns not just, for example, on that contract’s construction and
enforceability, but also crucially on the timing, nature, and
extent

of

Siemens.

SZ’s

sales

to

and

payments

from

Nordex

USA

and

Unlike the situation in RAR where “[t]he outcome of

this particular breach of contract action . . . will not turn on
any facts developed from RAR’s prior forum contacts,” 107 F.3d
at 1279, facts developed from SZ’s prior Illinois contacts will
- 18 -

indeed determine a large part of Bental’s claimed contractual
entitlements.

Instead

of

the

defendant’s

“prior

Illinois

contacts tell[ing] the court nothing about RAR’s cause of action
and shed[ding] little light even on the contract generally,”
ibid.,

Bental’s

significantly

recovery

indebted

under

to

SZ’s

the

Commission

Illinois

Agreement

contacts,

which

is
shed

light on Bental’s potential entitlements under that agreement
and on the agreement’s “economic substance.” Id. at 1278.

For

example,

SZ’s

provision

in

securing
the

Nordex

original

USA’s

Commission

business

triggered

the

Agreement

scotching

the

monthly retainer and travel expense reimbursements in favor of
the

commission

schedule

negotiated

in

the

amendment.

In

addition, the GPC governing Nordex USA’s purchase of products
from SZ –which, incidentally, chooses Illinois law and initially
contained

an

Illinois

forum-selection

clause

–

expressly

designates “third party entities providing services” related to
Nordex USA’s purchases as the “Supplier” counterparty.

This

provision plainly seems to contemplate Bental, given all the
services

Bauerle

supplied

for

every

Nordex

USA

purchase.

Whereas the “primary similarity between the disputed contract”
and the prior forum contacts in RAR was the identity of parties,
ibid., here the primary difference between the disputed contract

- 19 -

and the prior Illinois contacts is the lack of complete identity
of parties.
Indeed,

crediting

SZ’s

position

requires

reading

“in

regard” out of the Vetrotex court’s holding, which the Seventh
Circuit expressly adopted in RAR.

Had either court wished, it

could have easily limited the dealings relevant to the minimum
contacts

analysis

in

a

contract

case

parties to the disputed contract.”
court did.
the

those

“between

the

Needless to say, neither

As such, the dealings of SZ and Bental in regard to

Commission

Agreement

properly

contacts with Nordex USA.
under

to

which

it

was

implicate

SZ’s

Illinois

By putting in place an agreement

obligated

to

pay

commissions

on

sales

resulting from its agent’s successful efforts, SZ knew when it
subsequently
Illinois

and

relationship

directed

its

initiated
with

Nordex

agent
a

to

solicit

successful

USA,

that

it

Nordex

years-long
might

be

USA

in

business
suable

in

Illinois should either contractual relationship sour.
The Court feels compelled to say a few words about the Ohio
litigation.

As

an

initial

matter,

this

case

might

well

be

consonant with the outcome there on the Ohio court’s own terms.
The court took pains to note that Bental had failed to show
commissionable Ohio activities – that is, a relation between
SZ’s sole contacts with Ohio as a contractual counterparty and
- 20 -

Bental’s own activities in the state.

Here, however, Bental’s

account (which the Court must credit at this stage) speaks of
commissionable activities in Illinois that were related to SZ’s
contacts with the state.

In any event, to the extent the Ohio

court’s personal jurisdiction conclusion might bump up against
this Court’s, that may well flow from two outcome-determinative
facets of Ohio law that do not apply here.
First, unlike Illinois’s long-arm statute, the Ohio longarm statute is not coextensive with – and confers jurisdiction
more narrowly than - due process under the Constitution.
Schneider

v.

Hardesty,

669

F.3d

693,

699

(6th

Cir.

See,
2012);

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000)
(“[T]he

Ohio

Supreme

Court

has

ruled

that

the

Ohio

long-arm

statute does not extend to the constitutional limits of the Due
Process Clause.”) (citation omitted).

As such, the court did

not collapse the state into the federal due process inquiries,
as Illinois federal courts do, but instead ended its analysis
when it found application of the Ohio long-arm statute wanting.
See,

2016

present

a

WL

5173327

prima

facie

at

*2-3

showing

(“I
that

find
this

Plaintiff
Court

jurisdiction pursuant to Ohio’s long-arm statute.

failed

has

to

personal

Whether this

Court’s exercise of jurisdiction would offend the limitations of

- 21 -

federal

due

process

requirements

is,

therefore,

nugatory.”)

(internal citations omitted).
Second,
cause

the

Ohio

relationship

long-arm

between

the

statute

requires

defendant’s

forum and the plaintiff’s cause of action.
at *2.

a

contacts

proximate
with

the

See, 2016 WL 5173327

No such onerous requirement obtains under either the

Illinois or federal constitution, and indeed the Seventh Circuit
has expressly disapproved of such an approach, noting that the
“precise causal relationship between contacts and claim” should
not be dispositive.

See, uBID, 623 F.3d at 430 (“[R]equiring

proximate causation between contacts and claim would exclude too
many claims. . . .”).

While this Court does not impermissibly

swing the pendulum to the other amplitude, see, RAR, 107 F.3d at
1278 (rejecting but-for causation), it finds that the contacts
alleged and the wrongs alleged “are so intimately related that
[SZ] cannot reasonably have been surprised to find itself sued
in Illinois.”

uBID, 623 F.3d at 431.

Therefore, Bental’s lawsuit sufficiently arises out of and
is

related

to

SZ’s

minimum

contacts

with

Illinois

such

that

specific jurisdiction is proper.
3.
Finally,
specific

the

Court

jurisdiction

Fairness Analysis
must

over

SZ

satisfy
would

- 22 -

itself
not

that

offend

exercising

“traditional

notions

of

fair

play

and

substantial

justice.”

Asahi

Metal

Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 113 (1987).
examination
account

of

fair
burden

“‘the

play
on

and

substantial
defendant,’

the

justice
‘the

takes

forum

An
into

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

policies.’”

in

furthering

fundamental

substantive

social

Burger King, 471 U.S. at 477 (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

The

ultimate

and

constitutional

reasonable

to

call

the

lodestar
defendant

answer the plaintiff’s claim.”
a.
The

first

is

whether

into

the

it

is

state’s

“fair
courts

to

finding

of

uBID, 623 F.3d at 426.

The Burden on the Defendant

factor

weighs

slightly

against

a

fairness, as traveling to Illinois from Germany does burden SZ.
Worth keeping in mind, however, is the fact that “out-of-state
defendants always face such a burden,” Felland v. Clifton, 682
F.3d 665, 677 (7th Cir. 2012) (emphasis in original), and the
extent

to

which

communication
defending

have

suit

in

“modern

methods

significantly
a

forum

of

transportation

ameliorated
other

- 23 -

than

[the]
one’s

burden”

and
of

residence.

Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 632 (11th
Cir.

1996)

1050,

(citation

1060

(9th

transportation

omitted);

Cir.

and

see,

2007)

Menken

(“[W]ith

telecommunications

v.

Emm,

the

and

503

F.3d

advances

the

in

increasing

interstate practice of law, any burden [of litigation in a forum
other than one’s residence] is substantially less than in days
past.”); see also, Synthes (U.S.A.) v. G.M. Dos. Reis Jr. Ind.
Com

de

Equip.

(same).

Medico,

563

F.3d

1285,

1299

(Fed.

Cir.

2009)

Further, the burden on SZ personnel to travel from

Germany to any other potential U.S. forum – for example, Florida
- is effectively the same, and if the action were to proceed in
Germany,

Bental

would

bear

an

analogous

travel

burden.

See,

e.g., Innovation First Int’l, Inc. v. Zuru, Inc., No. 3:11 C
2726,

2012

WL

12897157,

at

*6

(N.D.

Tex.

Apr.

10,

2012)

(“Requiring Plaintiff to travel to a foreign forum to pursue a
remedy would merely shift travel burdens from the Defendant to
the Plaintiff.”).
A few other considerations warrant a mention.
parties

did

Commission

not

include

Agreement,

a

forum

suggesting

selection

that

SZ

did

For one, the

clause
not

in

the

devote

any

resources ex ante in reliance on a particular forum.
SZ

retained

U.S.-based

counsel

in

the

Ohio

action

Moreover,
and

has

retained a Chicago-based law firm in this case, both of whom
- 24 -

appear to have ably represented SZ’s interests.
to

some

extent

international

conventional

defendants

concerns

navigating

See, Asahi, 480 U.S. at 114.
SZ

weighs

against

a

a

about

This alleviates
the

foreign

travails

legal

of

system.

Therefore, although the burden on

finding

of

fair

play

and

substantial

justice, it does so only slightly.
b.

Illinois’s Interest in Adjudicating the Dispute

The second factor weighs moderately against a finding of
fairness.

Illinois’s interest in adjudicating this breach-of-

contract action between an Ohio LLC and a German company – even
if it involves some evidence located in Illinois - is minimal.
The only minor interest Illinois has in this case is application
of its state law, under which Bental has brought a claim.

While

Chicago-based Nordex USA may have an interest in the outcome of
this case, it is not a party, nor is it alleged to be a victim
in any way of SZ’s conduct.
c.

The Plaintiff’s Interest in Obtaining
Convenient and Effective Relief

The third factor, however, weighs significantly in favor of
a fairness finding.

This forum is much more convenient for

Bental to pursue its claims than Florida or Germany would be,
and it has already incurred costs in filing the unsuccessful
Ohio action.

In light of this procedural history, the statute

- 25 -

of limitations on Bental’s claim might expire – undermining the
effectiveness of relief elsewhere – if it is forced to re-file
this lawsuit again in a third forum.
d.

The Interstate Judicial System’s Interest
in Obtaining the Most Efficient
Resolution of Controversies

The fourth factor weighs moderately in favor of a fairness
finding.

Although Bental claims more commissions on SZ’s sales

of products to Florida-based Siemens than on sales to Nordex
USA, litigating the action here is a more efficient allocation
of interstate judicial resources.

Assuming equal amounts of

evidence in the possession of Nordex USA in Illinois and Siemens
in Florida, it will nonetheless be easier for all involved to
obtain written and oral discovery from Ohio if this Court is
home base for the action.

Discovery will thus take less time,

and this dispute can be more quickly purged from the federal
docket.

(The Court also notes that it enjoys a comparative

advantage, however slight, in applying Bental’s claims under the
Illinois sales commission statute, and that Bental in neither
its

Ohio

nor

Illinois

Complaints

asserted

Florida

state-law

claims.)
*

*

*

In sum, the first factor slightly weighs against personal
jurisdiction, and the second factor does so moderately.
- 26 -

The

third factor significantly and the fourth factor moderately cut
in favor of personal jurisdiction.
the

States’

inapplicable.)
overwhelmingly

fundamental

(The fifth factor concerning

substantive

social

policies

appears

Although the fair play considerations do not
favor

Bental,

they

do

support

characterizing

exercise of personal jurisdiction in this case as consistent
with “fair play and substantial justice.” Exercising personal
jurisdiction over SZ is convenient to Bental and efficient from
the perspective of interstate judicial resources, even if it
implicates matters of little interest to Illinois and imposes a
travel burden on SZ.
B.
SZ

advocates

for

under Rule 12(b)(2):

Forum Non Conveniens
an

alternative

to

dismissing

the

case

dismissal on forum non conveniens grounds.

SZ proposes that trial in a German forum will best serve the
convenience of the parties.

For the reasons explored below, the

Court agrees.
1.

Legal Standard

The common law doctrine of forum non conveniens allows a
trial court to dismiss a suit over which it would normally have
jurisdiction if it best serves the convenience of the parties
and the ends of justice.

In re Bridgestone/Firestone, Inc., 420

F.3d 702, 703 (7th Cir. 2005).

Federal courts have discretion

- 27 -

to

dismiss

available

a

case

forum

based

exists

on

and

this

“trial

doctrine
in

the

when
chosen

an

adequate

forum

would

establish oppressiveness and vexation to a defendant out of all
proportion to plaintiff’s convenience, or the chosen forum is
inappropriate

because

of

considerations

affecting

own administrative and legal problems.”
Malaysia

Int’l

Shipping

Co.,

549

the

court’s

Sinochem Int’l Co. v.
U.S.

(alterations omitted) (quotation omitted).

422,

429

(2007)

The defendant bears

the burden of persuasion on all issues related to forum non
conveniens.
for

Sinochem, 549 U.S. at 430.

improper

allegations

venue,

in

the

the

district

complaint

as

court

the

decision, but may look beyond them.

On a motion to dismiss
need

exclusive

not
basis

view

the

for

its

Deb v. SIRVA, Inc., 832

F.3d 800, 808-09 (7th Cir. 2016).
The analysis thus proceeds in two parts.

First, the Court

examines whether the proposed alternative forum is “available”
and “adequate.”
n.22 (1981).

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254
If so, then the Court proceeds to examine the

private and public interest factors set forth in Gulf Oil Corp.
v. Gilbert, 330 U.S. 501 (1947).
2.
An

Germany Is an Available and Adequate Forum

alternative

forum

is

“available”

if

all

parties

are

amenable to service of process and are subject to jurisdiction
- 28 -

in that forum.

Stroitelstvo Bulgaria Ltd. v. Bulgarian-American

Enterprise Fund, 589 F.3d 417, 421 (7th Cir. 2009).

The forum

is

offers

“adequate”

if

it

provides

a

fair

hearing

that

a

potential remedy for the subject matter of the dispute. Ibid.
The remedy need not be as comprehensive or as favorable as the
American claims; they need only offer some avenue of redress.
Ibid.
In support of an availability and adequacy determination,
SZ offers the affidavit of Professor Hans-Eric Rasmussen-Bonne,
an attorney who practices in Germany and is a member of the New
York bar in good standing; holds a Ph.D. from the University of
Illinois

in

conflicts

and

jurisdictional

issues;

and

has

researched and taught at Emory University, Dresden University,
and the University of Illinois.
in

the

Complaint

and

other

After analyzing the allegations

submissions,

Professor

Rasmussen-

Bonne concluded that Bental would be able to assert jurisdiction
over SZ in Germany.
international

He came to this conclusion by noting that

personal

jurisdiction

of

German

courts

in

this

case would be governed by European Union and German national
law.

On the reasonable assumption that SZ is only domiciled in

Germany,

Professor

Rasmussen-Bonne

concluded

that

European

Community Council Regulation (EC) No. 44/2001 on Jurisdiction
and the Recognition of Judgments in Civil and Commercial Matters
- 29 -

(as amended) would govern jurisdiction over SZ, meaning that
“German

courts

jurisdiction

to

would

have

adjudicate

general

claims

international

against

[SZ]

including

claims brought by the plaintiff in this case.”
Ex. B at 2.)

personal
the

(Def.’s Mem.,

Given his obvious expertise in these areas and his

detailed declaration on this score, the Court accepts and adopts
his conclusions.

Germany is “available” to Bental.

The Court additionally notes that SZ consents to personal
jurisdiction

in

Germany.

(See,

e.g.,

ECF

No.

16

(“Def.’s

Reply”) at 11 (“As referenced in SZ’s Memorandum, as a condition
to

a

forum

willing

non-conveniens

to

submit

to

dismissal,
the

SZ

has

it

of

jurisdiction

indicated

German

the

is

courts. . . .”).)

SZ’s willingness to do so bolsters a finding

that

an

Germany

is

available

forum.

See,

e.g.,

Barcode

Informatica Limitada v. Zebra Techs. Corp., No. 08 C 2021, 2011
WL 1100449, at *2 (N.D. Ill. Mar. 23, 2011).
With respect to adequacy, Professor Rasmussen-Bonne opines
that

“German

law

provides

adequate

remedies

for

claims

for

damages and for unjust enrichment.” (ECF No. 11, Ex. B at 1.)
These approximate the remedies Bental seeks in its breach of
contract,

state-law

commission,

and

unjust

enrichment

counts.

(Specific to Germany’s adequacy for unjust enrichment claims,
recall

that

SZ

responded

to

the

- 30 -

initial

demand

letter

from

Bental’s German counsel by making demands under German unjust
enrichment

law

professor’s

for

return

affidavit

goes

of
on

commission
to

note

payments.)

that

The

principal-agent

commercial cases are routine in German courts, governed by a
body of extensive literature and case law.

To the extent that

the penumbra of potential redress in Germany may nonetheless
fall

short

dispositive

of

that

available

the

adequacy

to

in

U.S.

courts,

this

determination.

Stroitelstvo, 589 F.3d at 421.

See,

is

not

e.g.,

So too if Bental cannot pursue

in Germany one of its specific causes of action asserted here.
See, e.g., ibid. (“[F]ederal courts have routinely held that the
loss

of

a . . . claim

does

conveniens

dismissal.”)

clear

this

in

potential

avenue

case
for

not

by

(citation

that

itself

preclude

omitted).

It

Germany

redress

for

provides
the

subject

at

is

forum

non

therefore

least

matter

“some
of

the

dispute.” Ibid. (citing Kamel v. Hill-Rom Co., Inc., 108 F.3d
799, 802 (7th Cir. 1997)).

As such, the Court similarly accepts

and adopts Professor Rasmussen-Bonne’s conclusion that Germany
is “adequate” to redress Bental’s claims.
While the Court would prefer a more detailed enumeration of
precisely what German causes of action Bental could pursue, this
is not a situation like that in Deb where “to the extent the
defendants offered any evidence at all, it was evidence that
- 31 -

would not, in fact, be subject to jurisdiction” in the foreign
forum.
meet

832 F.3d at 810-813 (finding that defendants did not
their

burden

where

they

argued

for

adequacy

“without

evidence, without expert testimony, and without a concession to
jurisdiction”).

Further,

Bental

itself

submitted

documents

indicating that it initially retained German counsel to make
claims on SZ under German law.
Ex. A.)

(See, generally, Pl.’s Br.,

If Germany is an inadequate forum, it is difficult to

understand why Bental’s first inclination – even before filing
suit in federal court in Ohio – was to make such demands on SZ.
Therefore, the Court finds that Germany is an available and
adequate forum – and hence provides an “alternative” forum for
purposes of forum non conveniens analysis.
3.

The Public and Private Interest Factors Favor Dismissal
Because Germany is an available and adequate forum, the

Court turns to examining the private and public interests at
stake.
a.
The
include

private
“the

Private Interest Factors

interest

relative

factors

ease

of

that

access

a
to

court

may

sources

consider

of

proof;

availability of compulsory process for attendance of unwilling,
and

the

cost

of

obtaining

attendance

of

willing,

witnesses;

possibility of view of premises, if view would be appropriate to
- 32 -

the action; and all other practical problems that make trial of
a case easy, expeditious and inexpensive.”
at 508.

Gulf Oil, 330 U.S.

The enforceability of a judgement, if one is obtained,

is also a private interest factor. Ibid.
The Court finds that the private interest factors favor
dismissal.
proof”

Both the “relative ease of access to sources of

and

the

“availability

of

compulsory

process

for

attendance of unwilling, and the cost of obtaining attendance of
willing,

witnesses”

forum.

Related

support

factors,

dismissal
such

as

in

favor

translation

of

a

German

expenses

and

Bauerle’s fluency in German, also buttress dismissal. (Bental
has not argued that any judgment it would receive in Germany
would be unenforceable.

The possibility of viewing the premises

seems inapt in this case.)
Most of the relevant evidence – including all SZ’s original
documents and witnesses – is located in Germany.
¶¶ 39-40.)
deposited
Clerides

(Schmidt Decl.

This typically suggests that the first factor be
on

v.

the

dismissal

Boeing

Co.,

side

534

of

F.3d

the
623,

ledger.

See,

e.g.,

629

Cir.

2008)

(7th

(noting that most of the evidence and witnesses were located in
the foreign forum).

While Bental claims that several potential

witnesses who are Nordex USA and Siemens employees reside in
Illinois,

Florida,

and

Kansas,

the

- 33 -

Court

is

not

willing

to

prioritize

the

convenience

of

third-party

exigencies of first-party discovery.

discovery

over

the

For one, the extent to

which such third-party discovery will be necessary is unclear,
notwithstanding Bental’s claim that these are “key witnesses.”
(Pl.’s Br., Ex. B ¶¶ 51-52.)

As far as the Court can discern,

besides Bauerle, no one in the U.S. participated in negotiating
the Commission Agreement or amending it – and much of his own
participation was in Germany.

For another, the damages evidence

is more likely to be in Germany than in Ohio, Illinois, or
Florida.

The

commissions

payable

to

Bental

were

to

be

calculated in Euros, per the Commission Agreement, and these
commissions were to be calculated based on the Euro value of
SZ’s

sales

–

the

original

records

of

which

reside

with

SZ.

(Schmidt Decl. ¶¶ 36-38.)
Further, with respect to first-party discovery, Bental is
comprised of one individual who would need to travel and give
testimony

abroad,

and

he

speaks

both

German

and

English.

(Indeed, SZ alleges without objection that Bauerle has or had
German citizenship.

(Schmidt Decl. ¶ 16.)

And he is fluent

enough in the language to have translated documents for Nordex
USA’s and SZ’s benefit, further supporting the notion that he
enjoys a comparative linguistic advantage over SZ personnel.)
Simply

put,

both

parties

can

transact

- 34 -

in

German,

but

only

Bauerle appears to have English-language skills.

It will be

easiest in terms of access to evidence and cheaper in terms of
translation
testimony
original

expenses

in

German,

have

to

a

travel

German

documents

to

Germany,
interpret

court

(including

give
the

the

Commission

The fact that Bauerle traveled to Germany several

during

executives

Bauerle

and

German-language

Agreement).
times

for

are

the
not

parties’

course

alleged

to

of

have

dealing

–

traveled

whereas

to

the

SZ

United

States, and indeed could not attend the U.S. trade show that
spawned the parties’ affiliation – further suggests that he is
the more convenient bearer of these burdens.
This dovetails with document-specific complications of the
case remaining here – such as the need to translate documents
and testimony into English.

See, e.g., Stroitelstvo, 589 F.3d

at 425 (upholding the district court’s dismissal and noting that
“[t]ranslating

all

of

the

Bulgarian

discovery

documents

English for a U.S. court would also be costly”).

into

This problem

is exacerbated in breach of contract cases such as this one in
which

entitlement

to

relief

might

well

turn

on

particular

wording in the contract (both the Commission Agreement and its
amendment were drafted and executed in German).

While the Court

appreciates Bental’s earnest offer to help mitigate expenses by
having Bauerle translate documents, out of impartiality concerns
- 35 -

the Court would require a second translation of such documents
anyway.
Moreover, to obtain testimony of involuntary witnesses, the
Court

would

be

required

to

navigate

the

Rube

Goldberg

contraption of the Hague Convention, which governs the taking of
evidence abroad.

Pursuant to that process, this Court would

write letters rogatory requesting evidence to the United States
Department of Justice, Civil Division, who would then forward
them to the competent German authority, who would then process
them

and

transmit

individual.

them

to

the

relevant

Germany

entity

or

Based on Professor Rasmussen-Bonne’s experience, it

“takes between three and six months until the Letter of Request
reaches

the

defendant.”

(Def.’s

Mem.,

Ex.

B

at

3.)

Such

obstacles suggest that information is much more easily obtained
in the foreign forum.
court

concluded

See, Clerides, 534 F.3d at 629-30 (“[T]he

reasonably

that

the

superiority

of

live

testimony and the inconvenience of taped depositions obtained by
letters rogatory favored dismissal.”); Vivendi SA v. T-Mobile
USA Inc., 586 F.3d 689, 696 (9th Cir. 2009) (“Moreover, the
district

court

concluded,

based

on

its

experience,

that

the

ability of the court to compel unwilling witnesses to testify
slightly favors dismissal because the Hague Convention’s letters
rogatory process, which would be necessary to produce proof for
- 36 -

an American trial, is more cumbersome than European Commission
Regulations for taking evidence within Europe, which would be
necessary to produce proof for a European trial.”).
Therefore, the private interest factors favor dismissal.
b.
The

Court

must

Public Interest Factors
also

weigh

the

public

interest

factors,

including “the administrative difficulties stemming from court
congestion;

the

local

interest

in

having

localized

disputes

decided at home; the interest in having the trial of a diversity
case in a forum that is at home with the law that must govern
the action; the avoidance of unnecessary problems in conflicts
of laws or in the application of foreign law; and the unfairness
of burdening citizens in an unrelated forum with jury duty.”
Gulf Oil, 330 U.S. at 508-09.

Unfortunately for Bental, the

public interest factors also make a convincing case for forum
non conveniens dismissal.
First,

to

the

extent

the

“court

congestion”

factor

is

worthy of consideration here, it does not support maintenance of
the case in this Court.

In 2015, this District was the busiest

in the Seventh Circuit in terms of cases filed (and the fourthbusiest in the entire United States).
Statistics 2015:

U.S. Courts, Caseload

Table C-5, U.S. District Courts – Median Time

Intervals From Filing to Disposition of Civil Cases, available
- 37 -

at

http://www.uscourts.gov/sites/default/files/c05mar15_0.pdf

(last visited July 13, 2017).

The median time from filing to

trial in civil cases was 28.8 months.

Ibid.; see also, In re

Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d 951,
958

(7th

Cir.

2007)

(“To

the

extent

that

court

congestion

matters, what is important is the speed with which a case can
come to trial and be resolved.”) (citation omitted).
parties

have

not

furnished

the

Court

with

While the

information

about

court congestion in Germany, other federal courts to consider
such evidence have found that “German courts generally are able
to

dispose

of

cases

more

quickly,

and

have

less

crowded

dockets[,] than either American courts generally or courts in
[this district] in particular.”
F.Supp.2d

717,

734

(W.D.

Tex.

Blum v. Gen. Elec. Co., 547
2008)

(crediting

defendant’s

evidence that case duration in German courts was “4.4 months for
district courts and 7.2 months for the regional courts” and that
there were “64 pending cases per judge in Germany compared to
1,164 pending cases per judge in the United States”).

In any

event, the Court doubts that tribunals in the State of SachsenAnhalt, Germany (where SZ has its principal place of business)
face congestion comparable to that prevailing in this District.
Because, given the sheer traffic in this District, it is likely
that

the

case

could

proceed

much

- 38 -

more

quickly

to

trial

in

Germany and also impede fewer other plaintiffs’ suits, this Gulf
Oil factor favors dismissal.

See, e.g., In re Air Crash at

Madrid,

2008,

Spain,

on

August

20,

893

F.Supp.2d

1020,

1042

(C.D. Cal. 2011) (“The Court does not have comparable statistics
for Spanish courts, but it is beyond dispute that this Court
faces

significant

contribute

to

the

congestion.
congestion

Hearing
in

the

these

U.S.

cases

would

courts. . . . [and]

impede the ability of local litigants to try their cases in this
district.”) (quotation and internal quotation marks omitted).
Next, in contrast to Germany, Illinois has little to no
localized interest in deciding this dispute.
Agreement

governs

the

past

relationship

The Commission

between

an

Ohio

and

German entity; it is a creature of either Ohio or German law.
The

only

Illinois

player

in

this

case,

Nordex

USA,

is

not

alleged to have done anything wrong, nor is SZ’s conduct alleged
to have wronged any Illinois resident.
not

a

citizen

of

Illinois,

Bental

is

Further, because it is
not

entitled

to

the

presumption in favor of a resident plaintiff’s choice of venue.
See, Sinochem, 549 U.S. at 430 (“When the plaintiff’s choice of
forum is not its home forum, however, the presumption in the
plaintiff’s favor ‘applies with less force,’ for the assumption
that the chosen forum is appropriate in such cases is ‘less
reasonable.’”) (quoting Piper Aircraft, 454 U.S. at 255-56).
- 39 -

In

fact, Bental acknowledges that “because it is not a resident of
the present forum, the strong presumption in favor of its chosen
forum is somewhat lessened.”
832 F.3d at 806).)

(See, Pl.’s Br. at 14 (citing Deb,

That Bental first sued in its home forum

before bringing suit here further belies the notion that this
forum

is

appropriate.

Absent

this

presumption,

both

the

“localized interest” and “unfairness of burdening citizens in an
unrelated forum with jury duty” militate in favor of forum non
conveniens dismissal.

See, e.g., Stroitelstvo, 589 F.3d at 425

(“Since this loan is so unrelated to the local forum, calling
Chicago-area citizens for jury duty on this case would be asking
a lot.”) (citation omitted).
In addition, because all Bental’s claims save the unjust
enrichment

count

expressly

turn

on

the

existence

of

a

valid

contract with SZ, the law in this diversity case that “must
govern the action” is more fairly said to be German or Ohio law,
notwithstanding

Bental’s

commission statute.
interpretation

of

single

claim

under

the

Illinois

Even if the presence of that claim, on an
Gulf

Oil

charitable

to

Bental,

means

that

Illinois law “must govern the action,” “the interest in having
the trial of a diversity case in a forum that is at home with
the law that must govern the action” would not favor an Illinois
forum.

It would at best weigh only neutrally in light of the
- 40 -

other causes of action asserted, including an analogous Ohio
statutory

cause

of

action

and

a

breach-of-contract

count

governed by either Ohio or German law.
In

any

event,

there

still

remains

the

thorny

issue

of

avoiding “unnecessary problems in conflicts of laws or in the
application
contests

of

foreign

application

of

law.”

On

German

the

law,

assumption

then

the

that

Court

Bental

would

be

forced to engage in a choice-of-law analysis without the benefit
of any relevant provision in the contract.
this

analysis

Germany,
Germany

would

their
and

on

be

the

parties’

negotiation

of

Ohio-Germany

the

Facts relevant to

residence
Commission

telephone

calls,

in

Ohio

Agreement
its

and
in

execution

apparently in each country, performance by SZ in Germany and
Bental in the United States, payment by SZ in Euros, and so on.
And even if Bental would not contest application of German law,
this Gulf Oil factor would favor dismissal, as the Court would
nonetheless be tasked with applying unfamiliar German contract
law.

Forum non conveniens is “designed in part to help courts

avoid conducting complex exercises in comparative law.” Piper
Aircraft, 454 U.S. at 251 (“[T]he public interest factors point
towards dismissal where the court would be required to ‘untangle
problems in conflict of laws, and in law foreign to itself.’”)
(quoting Gulf Oil, 330 U.S. at 509).
- 41 -

As with the private interest factors, the public interest
factors similarly favor dismissal.
*
In

summary,

the

Court

*
finds

*
that

both

the

private

and

public interest factors support dismissing the case on forum non
conveniens grounds.

Because it is more convenient for a German

court to adjudicate this case, the Court is willing to enter an
order of dismissal subject to the conditions stated below.
4.

Conditions of Dismissal

Because the Court has personal jurisdiction over SZ and
subject-matter jurisdiction based on diversity, it has authority
to subject SZ to conditions of forum non conveniens dismissal.
Cf., Sinochem, 549 U.S. at 435 (reserving decision on whether a
court

conditioning

a

forum

non

conveniens

dismissal

on

the

waiver of jurisdictional or limitations defenses in the foreign
forum must first determine its own authority to adjudicate the
case).
First, SZ must agree to consent to personal jurisdiction in
Germany, accept service of process, and waive any statute-oflimitations defense to Bental’s claims that did not exist prior
to

initiation

of

the

instant

lawsuit

(unless

such

a

defense

relies on Bental’s failure to bring suit timely after the date
on

which

the

Court

enters

a

dismissal

- 42 -

order).

See,

e.g.,

Pettitt v. Boeing Co., No. 09 C 3709, 2010 WL 3861066, at *2
(N.D. Ill. Sept. 28, 2010); Gonzalez v. Ford Motor Co., MDL
No. 1373, 2010 WL 1576831, at *3 (S.D. Ind. Apr. 19, 2010),
aff’d,

662

F.3d

931

(7th

Cir.

2011);

In

re

Air

Crash

Near

Athens, Greece on August 14, 2005, 479 F.Supp.2d 792, 805 (N.D.
Ill. 2007).
Second, SZ must agree to advise the German court that it
does not object to the admissibility of depositions taken in the
U.S. or other materials obtained in discovery in the U.S. simply
on

the

basis

that

the

obtained outside Germany.

depositions

or

other

materials

were

See, e.g., In re Factor VIII, 531

F.Supp.2d 957, 983 (N.D. Ill. 2008), aff’d, 563 F.3d 663 (7th
Cir. 2009).

Of course, SZ would retain the right to object on

any other grounds recognized by applicable evidence rules.
Upon the filing of SZ’s statement that it agrees to these
conditions, the Court will enter an Order dismissing this action
on the ground of forum non conveniens.

The statement should be

filed no later than fourteen (14) days from the date of this
opinion.

The dismissal of the case will be without prejudice to

its reinstatement in this Court should SZ fail to abide by any
of the above conditions.
F.3d

1374,

1383-84

(11th

See, King v. Cessna Aircraft Co., 562
Cir.

2009);

- 43 -

Tarasevich

v.

Eastwind

Transp. Ltd., No. 02 C 1806, 2003 WL 21692759, at *4 (S.D.N.Y.
July 21, 2003).
IV.
For

the

reasons

CONCLUSION

stated

herein,

Defendant’s

Motion

to

Dismiss [ECF No. 10] is denied under Rule 12(b)(2) but granted
under Rule 12(b)(3) on forum non conveniens grounds.

The Court

will enter an Order dismissing the case upon receiving within
fourteen

(14)

days

of

the

date

of

this

Opinion

a

written

statement of SZ agreeing to submit to personal jurisdiction in
Germany, accept service of process, waive certain statute-oflimitations defenses to Bental’s claims, and advise the German
court that it does not object to admission of evidence obtained
in the U.S. solely because that evidence was obtained outside
Germany.

The

dismissal

will

be

without

prejudice

to

reinstatement in this Court should SZ fail to abide by these
conditions.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: August 2, 2017

- 44 -