the defendant “should reasonably anticipate being haled into court [in the forum state],” based on
his contacts with the forum state. RAR, 107 F.3d at 1277 (quoting World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 297, 62 L.Ed. 2d 490, 100 S. Ct. 559 (1980)).

Discussion

In specific jurisdiction questions arising in contract claims, a court may only consider the
dealings between the parties with respect to the alleged contract. RAR Inc., 107 F.3d at 1278. That
is, an out-of-state defendant’s contract with an Illinois plaintiff is insufficient alone to establish the
requisite minimum contacts. Burger King, 471 U.S. at 478. “Rather, ‘prior negotiation and
contemplated future consequences, along with the terms of the contracts and the parties’ actual
course of dealing’ must indicate the purposeful availment that makes litigating in the forum state
foreseeable to the defendant. RAR Inc., 107 F.3d at 1277 (quoting Burger King, 471 U.S. at 479)
(emphasis added).

Consent to suit in a particular forum is an independent ground for the exercise of personal
jurisdiction, separate and distinct from any personal jurisdiction based on a minimum contacts
analysis. Burger King, 471 U.S. at 473 n.14. Under the terms of the contact, Defendant expressly
consented to the jurisdiction of the Northern District of Illinois:

Should it become necessary for any party to this contract to seek the
assistance of legal counsel to enforce any part of this subcontract or
to maintain or defend any cause of action or arbitration arising out of
this contract, venue is agreed_to be in Chicago, Illinois, and the
prevailing party shall be entitled to recover from the losing party all

costs and expenses reasonably incurred, including, but not limited to,
attorney’s fees....



Kanner, 913 F.2d 1213, 1219 (7th Cir, 1990)); Heller Fin., Inc, v. Summit Bank, No. 91 C 7576,

1992 WL 178651, at *8 (N.D. Ill. Jul. 15, 1992), “If the relationship between the parties is such that
the defendant should reasonably anticipate being haled into court in the forum state, then the

minimum contacts requirement is satisfied.” Plymouth Tube Co. v. O’Donnell, No. 95 C 0277, 1995

WL 387595, at *3 (N.D. Ill. Jun. 28, 1995) (citing FMC Corp. v. Varonos, 892 F.2d 1308, 1313 (7th
Cir. 1990)), Because of their on going relationship with Plaintiff, Defendant could reasonably

anticipate suit in Illinois. See id; see also Fel-Pro, Inc., No. 92 C 6954, 1993 WL 413972, at *3,4

(N.D. Ill. Oct. 15, 1993) (noting the significance of an ongoing relationship because such a
relationship provides defendants with notice of potential liability in Illinois). Accordingly, this Court

denies Defendant’s motion to dismiss for lack of personal jurisdiction.

"In light of the fact this Court had found that Defendant has consented to personal jurisdiction
in Illinois, this Court need not consider Defendant’s proposed 6 point test for finding personal
jurisdiction as described in Liberty Mutual Fire, Ins. Co. v. Reimer Express Enter. Ltd., 82 F. Supp
2d 887, 889 (N.D. Ill. 2000).

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that a court exercise personal jurisdiction over a non-resident only if the defendant has “certain
minimum contacts with [Illinois] such that maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310,

316, 90 L.Ed 95, 66 S. Ct. 154 (1945) (citations omitted). The exercise of personal jurisdiction must
also be consistent with the Illinois Constitution’s “separate and independent” guarantee of due
process. Rollins v. Ellwood, 141 Ill.2d 244, 565 N,E.2d 1302,1316 (Ill. 1990). It must be “fair, just
and reasonable to require a non-resident defendant to defend an action in Illinois, considering the
quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in
Illinois.” Id. Application of this standard depends upon whether a plaintiff asserts “general” or
“specific” jurisdiction.’ RAR, 107 F.3d at 1277.

For specific jurisdiction, the court must consider whether the defendant has “purposefully
established minimum contacts with the forum State’ and consider whether, by traditional standards,
those contacts would make personal jurisdiction reasonable and fair under the circumstances.” RAR,

107 F.3d at 1277 (quoting Burger King Corp. v. Rudzewicz, 417 U.S. 462, 476-77, 85 L.Ed2d 528,

105 S. Ct. 2174 (1985)). That the defendant has “purposefully availed itself of the privilege of
conduct activities within the forum State, thus invoking the benefits and protections of its laws.”

Burger King Corp., 471 U.S. at 475 (quotations omitted). Furthermore, the court must determine that

'A defendant is subject to general jurisdiction in Illinois only when it is either domiciled in
Illinois, or “where the defendant has ‘continuous and systematic general business contacts with the
forum.’” Euromarket Designs, Inc. v. Crate & Barrel Ltd., 96 F.Supp 2d 824,833 (N.D. Ill. 2000);
RAR, Inc., 107 F.3d at 1277 (quoting: Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 n.8, 80 L.Ed 2d 404, 104 S. Ct. 1868 (1984)) (internal quotations omitted). Although
Plaintiff does not specify whether they seek general or specific jurisdiction, Plaintiff does not present
an argument supporting general jurisdiction nor do the facts of the case suggest that general
jurisdiction over Defendant is available.

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(Emphasis added.) (Pl.’s Mem. Opp’n. Def.’s Mot. Dismiss, Ex. C. { 33). The Seventh Circuit has
repeatedly held that forum selection clauses are binding on the parties. Omron Healthcare Inc. v.

Maclaren Exp. Ltd., 28 F.3d 600 (7th Cir. 1994); Northwestern Nat’| Ins. Co. v. Donovan, 916 F.2d

372 at 378 (7th Cir. 1990). Parties may consent in advance to submit their controversies to a

particular forum. Heller Fin., Inc. v. Midwhey Powder Co. Inc., 883 F.2d 1286, 1290 (7th Cir. 1989).

Assuming the existence of a contract between the parties, Defendant agreed that Illinois law
would govern their relationship with Plaintiff. “This order is to be construed according to the laws
of Iinois from which this order issued.” (P1.’s Mem. Opp’n. Def.’s Mot. Dismiss, Ex. B § 27.) For
its part, Defendant points to a provision in the General Terms and Conditions which states that the
contract shall be construed to the laws of the state in which the project is located. (P1.’s Mem. Opp’n
Def.’s Mot. Dismiss, Ex. B. § 27.) However, “{a] federal court sitting in diversity looks to the
conflict-of-laws rules in the state in which it sits to chose the substantive law applicable to the case.”

Massachusetts Bay. Ins. Co. v. Vic Koeing Leasing, Inc., 136 F.3d 1116, 1122 (7th Cir. 1998) (citing

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L.Ed. 1477, 61 S. Ct. 1020 (1941).

Therefore, upon the proper application of the Illinois conflict-of-law rules, if need be, this Court is
equally capable of applying Ontario law to the dispute. A choice of law provision is hardly
determinative of venue.

Moreover, even if the forum-selection clause was not controlling, this Court would still have
personal jurisdiction over Defendant. Defendant claims the forum selection clause is the product of
unequal bargaining power and should therefore be unenforceable. However, the Court is not
persuaded by this argument. Defendant is not a widow or orphan but a sophisticated company which

has signed many contracts in the course of its business dealings. Additionally, Defendant asserts,

5.


Conclusion

For the purposes of this motion, Defendant has consented to personal jurisdiction and venue
in the Northern District of Illinois. Alternatively, this Court’s exercise of personal jurisdiction over
Defendant is proper because Defendant, through their relationship with Plaintiff, has purposefully
availed themselves of the privileges of conducting business in Illinois such that suit in Hlinois is
foreseeable. Accordingly, the court denies Defendant’s motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(2). Defendant is ordered to file an answer within fourteen (14) days of the
date of this order.

ENTER:

ao

UNITED STATES DISTRICT JUDGE

patep: 9 -2%-°3


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud Sitting Judge if Oth
enor Magistrate Judge Paul E. Plunkett thareAssigned Judge
CASE NUMBER 03 C 4375 DATE 9/24/2003
CASE Eisenmann Corporation vs. Tek-Mor, Inc.
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) im} Answer brief to motion due___. Reply to answer brief due.

(4) Qo Ruling/Hearing on setfor_ at

(5) a Status hearing[held/continued to} [set for/re-set for]on__setfor__at.

(6) QO Pretrial conference[held/continued to] [set for/re-set for]on__—_—ssetfor_—at__
(7) Q Trial[set for/re-set for]on___at

(8) im) (Bench/Jury trial] [Hearing] held/continued to. saat

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) OLocal Rule 41.1. ClFRCP41(a\(1) [1 FRCP41(a)(2).

(10) WM [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendant has consented
to personal jurisdiction and venue in the Northern District of Illinois. Alternatively, this Court’s exercise of
personal jurisdiction over Defendant is proper because Defendant, through their relationship with Plaintiff, has
purposefully availed themselves of the privileges of conducting business in Illinois such that suit in Illinois is
foreseeable. Accordingly, the court denies Defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2).
Defendant is ordered to file an answer within fourteen (14) days of the date of this order. Status hearing date of
10/1/03 at 9:30a.m,

(ij) off [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone,

ov J Docketing to mail notices.

Mail AO 450 form.

Lungs yorisia sa

Copy to judge/magistrate judge.

dave muited note
courtroom merle nets

TBK deputy’s
initials

—
Date/time received in -
central Clerk’s Office mailing deputy initia's



jt is a Canadian company who may not have understood the contract provisions. (Br. Supp. Def.’s
Mot. Dismiss at 14.) This, too, is unpersuasive because a fundamental principal of contract law is
that a person who signs a contract is presumed to know its terms and consents to be bound by them.

See Paper Express, Ltd. v. Pfanknoch Maschinen, 972 F.2d 753, 757 (7th Cir. 1992).

Although Defendant alleges having “no contacts whatsoever with the state of Illinois [and]
all contact with Plaintiff took place either in Ontario or via mail or telephone conversation,” (Br.
Supp. Def.’s Mot. Dismiss at 7) its physical absence from the state is not determinative of

jurisdiction. See Heritage House Rest. Inc. v. Cont’] Funding Group Inc., 906 F.2d 276, 283 (7th

Cir. 1990). Additionally, though Plaintiff may have solicited Defendant in Ontario to operate as a
subcontractor for Plaintiff in Ontario, Plaintiff and Defendant conducted negotiations both in Illinois
and Ontario via, fax e-mail and mail. (Ringmann Aff. {if 4,5.) A relationship “naturally based on
telephone and mail contacts rather than physical presence...should not [allow Defendant to] avoid
jurisdiction based on that distinction.” Heritage House Rest., Inc., 906 F.2d at 283.

Significantly, as part of this relationship, Plaintiff and Defendant were in regular contact
sending each other schedules, revised schedules, recovery plans, as well as, other communications
concerning the contract and its performance. Furthermore, Defendant submitted to Plaintiff an
additional quote for work on a proposed phase two of the project for which Defendant was
subsequently hired to complete as well. (P1.’s Compl. {{] 8-27.) Courts have often held that an
ongoing relationship between the parties is especially significant in making a personal jurisdiction

determination. See U.S. Gypsum Co. v. All Tank Sales & Supply Co., 977 F.Supp. 1340 at 1343

(citing Heritage House Rest, 906 F.2d at 284 (7th Cir. 1990)); H&V Silver Mine, Inc. v. Cohen, No.

96 C 3550, 1997 WL 639229, at *3 (N.D. Ill. Oct. 6 1997) (citing Daniel v. Hartwig Assoc., Inc. v.

-6-


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

EASTERN DIVISION
EISENMANN CORPORATION, )
)
Plaintiff, )
)
v. ) No. 03C4375
) Paul E. Plunkett, Senior Judge
TEK-MOR, INC., )
) g
Defendant. y et

TED

SEP 2 5 2003

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Federal Rules of Civil Procedure 12(b)(2) motion to dismiss

for lack of personal jurisdiction. For the reasons set forth below, the motion is denied.

Facts

The following facts are undisputed unless otherwise noted. Eisenmann Corporation
(‘Plaintiff’) is an Illinois corporation with its principal place of business in Crystal Lake, Illinois.
(P1.’s Compl. ¥ 1.) Tek-Mor, Inc. (“Defendant”) is a corporation organized under the laws of Canada
whose principal place of business is in Bolton, Ontario, Canada. (Pl.’s Compl. 2.)

Defendant was hired by Toyota Tsusho Canada, Inc. to engineer and install paint booths and
aplastic parts painting system at a Toyota facility in Cambridge, Ontario. (P1.’s Compl. 3.) In order
to fulfill this project’s requirements, Plaintiff solicited bids from various subcontractors, including

Defendant. Plaintiff accepted the bid of Defendant who was to perform the sheet metal work for the

-]-


Toyota project. (P1.’s Compl. { 13.) Plaintiff's complaint alleges several causes of action arising out
of the alleged breach of contract. Plaintiff filed its complaint in Cook County and Defendant
removed the case to this Court on grounds of diversity. 28 U.S.C. § 1441, 1446. Defendant moves

to dismiss the case for lack of personal jurisdiction, Fed. R. of Civ. P, 12(b)(2).

The Legal Standard

A federal district court sitting in diversity has personal jurisdiction over a non-resident only
if a court of the state in which it sits would have such jurisdiction. Fed. R. Civ. P. 4(k)(1)(A); Mid-

America Tablewares. Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1358 (7th Cir. 1996).

Where a defendant challenges a court’s right to exercise personal jurisdiction over him, the

plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Steel Warehouse, Inc. v.

Leach, 154 F.3d 712, 714 (7th Cir. 1998); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276

(7th Cir. 1997). However, the plaintiff “need only make out a prima facie case of personal
jurisdiction.” Hyatt Int’] Corp. v. Coco, 302 F.3d 707, 715 (7th Cir. 2002) (citing Tobin v. Illinois
Bd. of Elections, 268 F.3d 517, 521 (7th Cir. 2001)). In determining whether jurisdiction exists, the
court may consider the pleadings as well as any affidavits and documents submitted by the parties.
Turncock v. Cope, 816 F.2d 332,333 (7th Cir. 1987). If these materials reveal factual disputes, those
disputes are to be resolved in favor of the plaintiff. Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123
(7th Cir. 1983).

Under Illinois law, the long-arm statute permits in personam jurisdiction over a party to the
extent allowed under the due process clause of the Fourteenth Amendment. 735 ILCS 5/209(c);

Vioski v. Calaveras Asbestos, Ltd., 929 F.2d 352, 353 (7th Cir. 1991). Federal due process demands

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