doubt that plaintiff can prove no

USS. 41, 45-46 (1957). This cor

and construe any ambiguities

Regulation, 300 F.3d 750, 753

by pleading facts that undermiy

Chicago, 230 F.3d 319, 325 (7

L

Consent to Person

set of facts that would entitle him to relief. Conley v. Gibson, 335

urt! must accept the well-plead allegations of the complaint as true,

in|favor of the plaintiff. Thompson v. Illinois Dep’t of Prof’

mm Cir. 2002). However, a plaintiff can plead herself out of court
e the allegations set forth in the complaint. McCormick v. City of
th Cir. 2000).

ANALYSIS

al Jurisdiction

DLS relies upon case la
with 49 U.S.C. § 13304(a) to |
due to Jet’s consent, regardle’
comes from the fact that Jet
purpose of accepting service

Before reaching the m}
raised by the parties. The p|
holding that the registration
factor . . . in determining wh
[t]here is nothing in section 2
a corporate defendant simp}

y

registered agent.” Alderso:

eri

arty

et}

+24

Vv

Ww primarily developed in the Eight Circuit as well as Jet’s compliance

kipport its contention that this court has personal jurisdiction over Jet
bs of Jet’s contacts with Illinois. According to DLS, Jet’s consent
registered an agent in Illinois, pursuant to federal law, for the
f process,
its of DLS’s argument, this court must address a preliminary matter

es dispute the weight this court should give to Illinois case law

f a agent to receive process “is not an independently determinative

her a foreign corporation is doing business in Illinois[,] [because]

9 of the Code that supports asserting in personam jurisdiction over
an

Yecause the plaintiff served summons upon the defendant’s Thlinois

|. Southern Co,, 747 N.E.2d 926, 944 (Ill. App. Ct. 2001) (citing

Colletti v, Crudele, 523 N.F

dispositive of the question of

response, DLS states in a

2

Olt

|
Kd 1222, 1230 (Ill. App. Ct. 1988)). Jet argues that these cases are
hether this court has personal jurisdiction over it due to consent. In
clusory manner, without any citation to authority, that “State law

ol
4



DLS repeatedly argues to this

response letter”) (Sec. Am. Coy

Jet’s response letter first stated:

court that the letter Jet sent in response on the same day (“Jet’s

np}. Ex. 11) accepted DLS’s offer letter. This argument is untenable.

[We have reviewed your letter . . . and can agree to the following

modified provisions.” The lettey then modifies nearly all of the provisions of DLS’s offer letter.

These modifications foreclos|

D’Agostino v. Bank of Raven!

B'

lhe conclusion that the Jet response letter was an acceptance.

‘nod, 563 N.E.2d 886, 889 (Ill. App. Ct. 1990) (citations omitted)

(“An acceptance requiring any|
offer and becomes a counteroff

is formed.”). Furthermore, Jeti

offer letter stated: “Jet Messenge

non-compete clause.” (Sec. Am.

to sign a contract with [DLS]
Standard Contract this is of c

ended with the phrase: “Than}

response letter is clearly not 4 to)

q

Park, 466 N.E.2d 1245, 1249
manifested, for otherwise no|
basis for rejecting DLS’s argy
argument, to the extent it is m

despite the fact that it doe:

imi

er |

th:

ULI

pdification or change of terms constitutes a rejection of the original
ithat must be accepted by the original offeror before a valid contract
's Fesponse letter does not purport to accept DLS’s offer letter. DLS’s
x must sign a current Supplier contract with [DLS] that includes a
(Compl. Ex 10.) And Jet’s response letter stated: “Jet . .. will agree
t includes a non compete clause . .. . Since we have not seen your
se Subject to review.” (Sec. Am. Compl. Ex. 11.) Jet’s letter also
you for your consideration and we await your response.” (Id.) Jet’s
bjective manifestation of acceptance, see Rosin v. First Bank of Oak

11. App. Ct. 1984) (“To be valid, an acceptance must be objectively

eting of the minds would occur.”), which provides an additional
ent that a signed agreement exists. Finally, this court rejects DLS’s

, that Jet’s response letter can operate to satisfy the statute of frauds

not accept DLS’s offer letter. See Central Illinois Light Co. v.

Consolidation Coal Co., 349 F.3d 488, 488 (7th Cir. 2003) (citations omitted) (“documents that

merely evidence negotiation;

Second, this court he

do not satisfy the statute of frauds.)

ids that at least part of DLS’s breach of contract claim is based on a

9



question presented to this court}
service of process ina State pur}
State.

Turning to federal la

13304(a), which states, in pertin

A motor carrier or brd
each State in which it
issued by a court with
against that carrier or
49 U.S.C. § 13304(a). Accort
personal jurisdiction over Jet|
Minimum contacts with Illino
(8th Cir. 1991),? which held tH

district court in Missouri pe

analysis.’ Id, at 557. Accord

sub

din

at}

Bh:

namely, whether a defendant who has designated an agent to accept

suant to a federal statute has consented to personal jurisdiction in that

Jet registered an agent in Illinois pursuant to the 49 U.S.C. §

nt part:
ker providing transportation . . . shall designate an agent in
operates by name and post office address on whom process

iject matter jurisdiction may be served in an action brought
rgker.

g to DLS, Jet’s registration pursuant to this federal statute effects
in| Iinois courts without any requirement that Jet have any further
lin support, DLS cites to Ocepek v. Corporate Transp., 950 F.2d 556
designation of an agent in Missouri pursuant to this statute gave the
inal jurisdiction by consent regardless of any minimum contacts

ie

apiro v. Southeastern Greyhound Lines, 155 F.2d 135, 136 (6th Cir.

1946); Rounds v, Rea, 947 F

Lines, 5 F.R.D. 11, 13 (N.D.

Sy
Dh

pp. 78, 82-84 (W.D. N.Y. 1996); Scott v. Southeastern Greyhound

io 1945); McKamey v. Vander Houten, 744 A.2d 529, 531-32 (Del.

? At the time Ocepek ¥
agent to receive process was ¢

3 In Ocepek, the plaint
Id. at 556. The plaintiff then g
District of Missouri for allege:
carrier or broker” covered by
receiving service of process a:
defendant did not have suffici
at 556-57. The Eighth Circuit
decision in Knowlton v. Allies

as
di

ff]
jue
dl
ihe
Te
eri
re}

decided, the portion of Title 49 that requires the designation of an
fied as 49 U.S.C. § 10330(b).

a citizen of Missouri, was hurt in a car accident that occurred in Ohio.
d the defendant, a citizen of New York, in District Court for the Eastern
causing the car accident in Ohio. Id, The defendant was a “motor
[Motor Carrier Act and had designated an agent in Missouri for

quired by the Act. Id. The district court, after determining that the
contacts with Missouri, dismissed the case for lack of jurisdiction. Id.
wersed. In Ocepek, the Eight Circuit relied heavily on its previous

Yan Lines, Inc., 900 F.2d 1196 (8th Cir. 1990), which held that

appointment of an agent to re
jurisdiction on the basis of co

ei
Sq

e service of process pursuant to a state statue confers personal
ant,



concerning this issue is preempted.” (Pl.’s Resp. at 4.)

The Illinois cases ¢ited by Jet are inapplicable to the issue before this court. The issue this
court is considering is whether Jet has consented to suit in Illinois by designating an agent to accept
service of process. The Illindis cases cited by Jet consider the designation of an agent in the context

of analyzing whether a forpign corporation is doing business in Illinois. See Alderson, 747 N.E.2d

at 944 (“The designation of am Illinois registered agent is not an independently determinative factor,
however, in determining whether a foreign corporation is doing business in Ilinois.”). Furthermore,
these cases do not hold that the Illinois Constitution bars the finding that a defendant consents to
personal jurisdiction in Illinois by designating an agent to receive service of process. And the
Seventh Circuit has made clear that “the Ilinois long-arm statute now ‘permits its courts to exercise
jurisdiction on any basis permitted by the Illinois and United States Constitutions.”” Hyatt Int’] Corp.
v. Coco, 302 F.3d 707, 714 (Vth Cir. 2002) (citing Central States Southeast and Southwest Areas

Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 940 (7th Cir. 2000)).

Finally, while the Seventh Circuit has consistently adhered to the ruling that “[a] district court
sitting in diversity has persqnal jurisdiction over a nonresident defendant only ifa court of the state

in which it sits would haveljurisdiction,” see Purdue Research Found., 338 F.3d at 779; Lakeside

Bridge & Stee] Co. v. Mountain State Constr. Co., 597 F.2d 596, 598 (7th Cir. 1979); Canvas

Fabricators, Inc. v. William|E.|Hooper & Sons Co., 199 F.2d 485, 486 (7th Cir. 1952), the Seventh

Circuit has also excluded canspnting defendants from this rule. See McIlwee v. ADM Indus., Inc..

17 F.3d 222, 223 (7th Cir} 11994) (‘‘A federal district court sitting in diversity in Illinois has
jurisdiction over a non-resitient, non-consenting defendant if an Illinois state court would have
jurisdiction over that party.’}) (citation omitted).

Accordingly, this court holds that the Illinois cases cited by Jet are not dispositive of the

5



over acorporation”); Wenc]

Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (Sth Cir. 1992)

(same as applied to registraf
Circuits have found that “
compliance with state dom¢

The Seventh Circuit
of process, [a] foreign [corpq

Ins. of Wausau v. Banco De

lion under state law). These cases from the Fourth, Fifth and Eleventh

lhe| principles of due process require a firmer foundation than mere

stication statutes.” Ratliff, 444 F.2d at 748.

however, has stated that “by agreeing to designate an agent for service

ration] can waive [the] requirement of ‘minimum contacts.” Employers

eguros Del Estado, 199 F.3d 937, 943 (7th Cir. 2000) (citing RAR, Inc.

vy. Turner Diesel, Ltd., 107
Employers Ins. of Wausau fa
a “Service of Suit” clause.
analyzing 49 U.S.C. § 13304
consented to be sued in the
I.
The Illinois Statute
No action shall be bri
the space of one year
which such action sl
in writing, and sign¢
thereunto by him la
740 ILCS 80/1. Jet argues t}
and that counts If and IV aj
argues that a written contraq
a year.

First, this court rejec

On January 8, 2003, DLS sei

Statute of Frau

F.4

3d 1272, 1280 (7th Cir. 1997)). Admittedly, the Seventh Circuit in

lurid waiver in the context of a contract between the parties that included

Nevertheless, this court is convinced that the weight of authority

(al

”s service of process provision correctly holds that a corporation has

forum where it designates an agent to receive service of process.

+S

f Frauds states that:
pu;
lfird
al
id
fu

ght... upon any agreement that is not to be performed within
m the making thereof, unless the promise or agreement upon
be brought, or some memorandum or note thereof, shall be
by the party to be charged therewith, or some other person
lly authorized.

hat DLS’s breach of contract claim in count I is barred by this statute,

e bimilarly based on an unenforceable agreement. In response, DLS
it actually exists, and that the contract could be performed in less than
ts DLS’s contention that a written contract between the parties exists.

at an offer letter (“DLS’s offer letter”) (Sec. Am. Compl. Ex 10) to Jet.

8



‘Minute Otter Form (06/97)

United States District Court, Northern District of Minois

Doketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

s {

courtroom
deputy’s

initials

Name of Assigned Jud; Sitting Judge if Other
or Magistrate Judge James|F. |Holderman than Assigned Judge
CASE NUMBER 08 € 7823 DATE May 24, 2004
CASE R.R.|DONNELLEY & SONS CO vs, JET MESSENGER SERVICE
TITLE
[In the following bpx (4) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MoTIon: Of the motion beingg piesented.
DOCKET ENTRY:
qQ) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion dye, . Reply to answer brief due. .
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Q Pretrial snateenonbel ote to} [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for]|on| at
(8) oO (Bench/Jury trial} [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C Logal Rule 41.1 COFRCP41(a)(1) (© FRCP41(a)(2).
ao gf [Other docket entry] | Defendant’s motion to dismiss the second amended complaint is denied..
Defendant’s motion to strike the declaration of Kraznow is moot. Defendant is directed to file its answer
to the complaint by June 82004. The parties are directed to conduct an FRCP 26(f) conference and file
a form 35 by June 10, 2004. Status hearing to set a discovery and trial schedule is set for June 15,2004
at 9:00 am.
gy oa [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court]
No notices required.
baa Notices mailed by judge's staff.
‘VC| Notified counsel by telephone,

Date/time.received in
centfal Clerk's Office »



dismissal of count I would be inappropriate at this time.* As explained, DLS may be able to prove
the existence of a contragt other than the standard Supplier Contract, which would render Jet’s
defense of the statute of Sets inapplicable. Furthermore, even if the standard Supplier Contract
is the only agreement, DL$ mhay be able to prove a set of facts consistent with the Second Amended
Complaint that would est ish equitable estoppel. Accordingly, the motion to dismiss for failure
to state a claim is denied. However, both parties should bear in mind that these arguments regarding
the statute of frauds can be rdised later at summary judgment.
CONCLUSION

Accordingly, the mption to dismiss is denied.° Jet is ordered to file an answer to the Second
Amended Complaint on oy before June 8, 2004. Counsel are to confer pursuant to Rule 26(f) and
file a jointly completed Form BS5 signed by each counsel on or before June 10, 2004. This case is set
for a report on status and the ¢ntry of a scheduling order at 9:00 a.m. on June 15, 2004. The parties
are urged to discuss settlemen|t.

ENTER:

a a ee

S F. HOLDERMAN
nited States District Judge

DATE: May 24, 2003

5 Because DLS may be able to prove the existence of an enforceable covenant not to compete,
this court need not consider J¢t’s assertion of “competitor’s privilege.”

® Jet’s Motion to Strike Ieclaration of Keith Kranzow (Dkt. No. 19) is moot.

11



contract that cannot be performed within a year. Nevertheless, the motion to dismiss count I is

denied. It is unclear from ]]

contract DLS alleges was b:

ILS’s Second Amended Complaint and the parties’ memoranda which

eached. At times, DLS clearly refers to the standard Supplier Contract

as the basis of the alleged agreement. (Sec. Am. Compl. {J 42, 44.) But DLS also seems to refer

to a separate agreement (likely made up of the terms discussed in DLS’s offer letter and Jet’s

response letter) that exists independently of the standard Supplier Contract. (Sec. Am. Compl. {J

26, 45.) The distinction is s}

ignificant, because the standard Supplier Contract cannot be performed

within a year, but it is not clear how long it would take to perform any agreement separate from the

standard Supplier Contract.
“The test to determi
frauds is whether, when it w:
full performance was like!
1990)(citations omitted).
Supplier Contract, then it is
year. In fact, it would be cor]
possible separate agreeme
relationship with SunTrust.
However, the standard Supp

of three years. (Sec. Am. Ci

he|if an agreement is subject to the one-year provision of the statute of
as made, it was capable of full performance within one year, not whether
ly. Silvestros v. Silvestros, 563 N.E.2d 1084, 1086 (Ill. App. Ct.
If DLS alleges that an agreement exists, separate from the standard
inat clear that this separate agreement could not be performed within a
sistent with the allegations of the Second Amended Complaint that this
It was to continue contemporaneously with DLS’s month to month
Therefore, that agreement would not be barred by the statute of frauds.
lier Contract, which includes a covenant not to compete, was for a term

mip}. Ex, 13, § 17). Therefore, that agreement would be barred by the

statute of frauds, unless DUS can prove, as it has alleged, that the doctrine of equitable estoppel

applies. Bower v. Jones, 978 F.2d 1004, 1010 (7th Cir. 1992) (“Illinois apparently does allow the

use of equitable estoppel to

bar an opponent’s statute of frauds defense.”)

Given the standard af review which this court must apply in analyzing a motion to dismiss,

10



1999); Mittelstadt v. Rouzer, 328

this issue, Zyblut v. Shippers

ESI

N.W.2d 467, 468-69 (Neb. 1982). However, courts are split on

Express, Inc, 408 A.2d 978, 978-79 (D.C. 1979) (no personal

jurisdiction, despite designation
activities as an interstate carriey
Md. 2003) (refusing to rule that

in consent to personal jurisdicti

*5-*7 (E.D. La., Sept. 26, 200

SSH, 1992 WL 101621, at *1 J

§ 10330(b) was not sufficient

Jet urges this court to
hold that compliance with 49
The court in Tyler, like the co
that both Tyler’s and Lyons’s
Tegistered agent was insuffig

Specifically, Tyler relied on R

¥)
di

ny

urt|

rey

ie

f an agent, where the suit did not “relate to the defendant’s

Tyler v. Gaines Motor Lines, Inc., 245 F.Supp.2d 730, 732 (D.

signation of an agent pursuant to 49 U.S.C. § 13304(a) resulted

; Lyons v. Swift Transp. Co., No. 01-209, 2001 WL 1153001, at

) (same), Maroshek v. East Penn Trucking Co., Civ. A. No. 92-27

D.1D.C. Apr. 29, 1992) (designation of an agent pursuant to 49 U.S.C.

lo satisfy District of Columbia long-arm statute).

ide with the United States District Court of Maryland in Tyler and

8g

ES’

.C. § 13304(a) does not result in consent to personal jurisdiction.‘
lin Lyons, refused to follow the holding of Ocepek on the grounds
spective Circuit Courts of Appeals had held that appointment of a
nt to establish general personal jurisdiction over a corporation.

Ne: ..Inc., 444 F.2d 745, 748 (4th Cir. 1971), where

the Fourth Circuit noted that

service to fulfill a state law 1

Consolidated Dev. Corp. v.

“tl

eat
SI

he application to do business and the appointment of an agent for
hirement is of no special weight in the present context.” See also

erritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) (rejecting “the

argument that appointing a reg}

istered agent is sufficient to establish general personal jurisdiction

* This court declines td

to be cited according to Calif
activities giving rise to this suj
will not consider whether pers
basis.

it

cf
Bullocks Express Transp., if

ny

pnsider the only other case cited by Jet, XL Specialty Ins. Co. v.

WL 505143 (Cal. App. 2002), because it is an unpublished opinion not
a Rules of Court 977(a). Furthermore, Jet has not argued that the

not related to its activities an interstate carrier. Therefore, this court
al jurisdiction may be inappropriate under the facts of this case on that

i



and DLS’s Supplier Contract Manager agreed to terms for Jet to act as the subcontractor on the
proposed service contract with SunTrust. Jet’s president scheduled a trip to DLS’s headquarters in
Chicago, Illinois, for January 8, 2008 to sign the new agreement with DLS. Jet’s president, however,
never made that trip to Chicago] to sign the new agreement. After January 8, 2003, Jet made no
representation that it intended tg rescind its new agreement with DLS.

Some time after the new agreement was made on January 8, 2003, Jet approached SunTrust
directly, in breach of its agreement with DLS, and provided a set of rates to SunTrust significantly

lower than the rates Jet provided tg DLS. Jet was able to provide the separate and lower set of rates

Jet quoted to SunTrust because|of]Jet’s knowledge of the logistics management system created by

DLS. On May 31, 2003, the date the service contract between DLS and SunTrust was to end, DLS
and SunTrust amended their oni service contract by continuing it on a month to month basis.
On August 7, 2003, SunTrust notified DLS that it was terminating its service contract with DLS
effective September 6, 2003. SuqTrust effected its termination of its service contract with DLS and
then began to operate directly with Jet.

STANDARD OF REVIEW

While a plaintiff need not allege facts establishing personal jurisdiction in the complaint, the

plaintiff bears the burden of demonstrating the existence of personal jurisdiction once it has been

challenged by the defendant. Purdue Research Found, v, Sanofi-Synthelabo, S.A., 338 F.3d 773, 782

(7th Cir. 2003). When a motion to dismiss based upon personal jurisdiction is made on the basis of
written materials, as it is hete,|the plaintiff “need only make out a prima facie case of personal
jurisdiction.” Id, (quoting a Int’! Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)) (citations
omitted).

Dismissal pursuant to Rule 12(b)(6) is proper only when it appears beyond a reasonable

3



For the following reasons, Jet’s

motion to dismiss is denied.

BACKGROUND FACTS

For the four-year period of June 1, 1999 to May 31, 2003, DLS had a service contract

(“service contract”) with SunTrust Banks, Inc. (“SunTrust”), a commercial banking organization

headquartered in Atlanta, Ggor!|
management services and tp
SunTrust.' From June 1, 19s
contract in September of 2008,
To fulfill apart of DLS’s service
that subcontract, Jet was to prov
on DLS’s behalf.

In late 2002, DLS, Jet] an

pia. Under the service contract, DLS agreed to provide logistics
rovide related manpower, products and services on behalf of
until the actual termination of DLS’s services under the service
DLS provided several logistics management se services for SunTrust.

contract with SunTrust, DLS engaged Jet as a subcontractor. Under

ide for-hire courier services for the movement of SunTrust’s freight

d other contractors and subcontractors in the industry became aware

that SunTrust intended to gs

SunTrust sent the RFP out
management contract after it
SunTrust’s RFP without Jet
retain Jet as a subcontractor]
According to DLS,
subcontractor on the propos:

directly with SunTrust. Th

consummated between J; anu}

end out a Request For Proposals (“RFP”) in mid-February 2003.
for the purpose of determining with whom to open a new logistics
S contract with DLS terminated. DLS initially intended to respond to

as |a subcontractor, but due to pressure from SunTrust, DLS agreed to

et} prior to DLS’s response to the RFP, agreed to remain as DLS’s
d service contract with SunTrust and also agreed not to communicate
fis jagreement between DLS and Jet was purportedly negotiated and

7, 2003 and January 8, 2003. On January 8, 2003, Jet’s president

All of these facts ard
2004, (Dkt.# 12.)

taken directly from the Second Amended Complaint filed on March 15,



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

R.R DONNELLEY & SONS COMPANY,
d/b/a R.R. DONNELLEY LOGISTICS

SERVICES

Plaintiff,

Vv.

JET MESSENGER SERVICE, INC,
Defend an.

EASTERN DIVISION
)
)
)
)
) No. 03 C 7823
)
Op
Li?
) “al
) May 77 &
2004

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

Before this court is defendant Jet Messenger Service Inc.’s (“Jet”), motion to dismiss the

Second Amended Complaint filed against it by plaintiffR.R. Donnelley Logistics Services (“DLS”).

DLS’s Second Amended Complaint alleges diversity jurisdiction under 28 U.S.C. § 1332(a) as the

basis for this court’s subject matter jurisdiction. Jet is a New Jersey corporation principally doing

business in New Jersey, and D

ILS is a Delaware corporation principally doing business in Illinois.

The Second Amended Complaint contains four counts: count I, breach of contract; count IL, fraud;

count II], tortious interference

with contract; and count IV, tortious interference with expectancy.

Generally, the dispute arises jout of an alleged agreement between DLS and Jet where Jet was to be

a subcontractor for DLS on 4 c'

its promise not to communic

stomer account. (Sec. Am. Compl. at 3.) DLS alleges Jet breached

e directly with the customer (P1.’s Resp. at 13), which allegedly

resulted in Jet acquiring the jactount by allegedly using information Jet gained while it was DLS’s

subcontractor. (Sec. Am. |C

mpl. at 7.) Jet’s motion asserts that this court lacks personal

jurisdiction over Jet and also contends that DLS’s Second Amended.Complaint fails to state a claim.