this case pursuant to the doctrine of forum non conveniens is appropriate, I do not address the
first three bases for dismissal.!

As a general rule, there is a strong presumption in favor of a plaintiff's choice of forum.
Zelinski v. Columbia 300, Inc., 335 F.3d 633 (7th Cir. 2003). When a plaintiff chooses a forum,
it is normally reasonable to assume that the choice is convenient. Hyatt Int’l Corp. v. Coco, 302

F.3d 707, 718-19 (7th Cir. 2002). A forum non conveniens inquiry is a two-step analysis. See

' Were I to address these issues, I would find as follows. First, I would deny the Rule 12(b)(1) motion
because I have granted a motion to substitute NAPL as plaintiff, thus mooting CMD’s argument on this basis.

Regarding the Rule 12(b)(2) motion, I would find that specific jurisdiction exists because CMD has
“purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that result
out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985) (omitting
quotations). Namely, FMG has had sufficient contacts with Illinois to sustain specific jurisdiction, « and CMD may be
the successor in interest to FMG. Regarding FMG’s contacts, FMG representatives came to Illi to negotiate the
terms of the contract with Intersolving; executed the contract here; participated in marketing activities here; shipped
products here; and received payment here. Under similar circumstances, Illinois courts have held that specific
jurisdiction exists over foreign or out-of-state defendants. See Allerion, Inc. v. Nueva Icacos, S.A. de S.V., 669
N.E.2d 1158 (Ill. App. Ct. 1996); G.M. Signs, Inc. v. Kirn Signs, Inc., 596 N.E.2d 212 (Ill. App. Ct. 1992); Capital
Assoc. Dev. Corp. v. James E. Roberts-Ohbayashi Corp., 487 N.E.2d 7 (Ill. App. Ct. 1985). Second, NAPL has
sufficiently pled that CMD may be the successor in interest to FMG. Successor liability may follow the purchase of
assets: (1) where there is an express or implied agreement of assumption; (2) where the transaction amounts to a
consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of
the seller; or (4) where the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations.
Green v. Firestone Tire & Rubber Co., 460 N.E.2d 895 (Ill. App. Ct. 1984). FMG and CMD allegedly shared some
of the same personnel, cookware products, factory and office locations, the Magefesa brand name, and the same
corporate history based on representations made by CMD on its website. On the other hand, CMD claims its and
FMG?’s association and involvement with Indosa explain these similarities. Nonetheless, in light of the conflicts
created by the sparse record on the successor in interest issue, I would resolve the issue in favor of NAPL because I
must “resolve[] any conflicts in favor of the plaintiff.” Davis v. Howse, No. 02 C 5549, 2003 WL 21317289, at *1
(N.D. Ill. Jun. 5, 2003) (omitted citations).

Regarding the Rule 12(b)(4) motion, I would find that service on CMD was properly accomplished pursuant
to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters,
Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.LA.S. No. 6638. As a general rule, Illinois
courts will not invalidate service of process because of minor defects in the form that do no affect the primary
objectives of the process. Charter Bank & Trust of Illinois v. Beverly Novak, 578 N.E.2d 629 (Ill. App. Ct, 1991).
Here, Intersolving — plaintiff prior to NAPL’s substitution — successfully moved for a court order appointing Ace
International Services, Inc. as a special process server. Upon learning that service in Spain could take as much as
six months, Intersolving moved for and was granted a ninety day extension to accomplish service. As the ninety-day
period passed with no indication that service had been accomplished, Intersolving moved for and was granted a
second ninety day extension. During that period, Intersolving received two documents from the Spanish Ministry of
Justice showing that service was completed on each of the defendants in a manner that satisfied Spanish authorities.
And I am aware of no Illinois or Hague Convention requirement that an order extending the time for service must be
given to the party served along with the summons. CMD’s remainder arguments against service — raised in its reply,
rather than its original motion — border on being farcical and need not consume my time.

4


For the reasons above, CMD’s Forum Non Conveniens Motion to Dismiss is GRANTED.

ENTER:

\. 6.

EY
es/B. Zagel (
ivéd States District Judge

DATE: _!0 Wov @a0D



(“Indosa’”). Manufacturas Generales de Ferreteria, S.A. (“Magefesa”) licensed Indosa to
produce goods under the Magefesa trademark. Indosa entered into a manufacturing contract with
FMG. Indosa manufactured goods bearing the Magefesa trademark and supplied them to FMG,
who in turn sold them to other companies, such as Intersolving. Indosa’s relationship with FMG
was strictly commercial and limited to this manufacturing contract. Indosa and FMG were
separate, unrelated companies; they had no common ownership, officers, or directors.
Furthermore, the employees which NAPL’s president claimed worked for both FMG and CMD
were actually employees of Indosa. In 1994, Indosa went into bankruptcy. In 1996, with the
approval of Indosa’s creditors and under the authority of the Spanish Judge overseeing the Indosa
bankruptcy, certain Indosa assets, such as Indosa’s factory, were transferred to CMD, a new,
wholly independent corporation. CMD was subsequently given a license by Magefesa to produce
goods under the Magefesa trademark.

CMD has moved to dismiss NAPL’s complaint on four grounds: (1) that there is no
Justiciable claim in this case, Fed.R.Civ.P. 12(b)(1); (2) that this Court lacks personal jurisdiction
over CMD, Fed.R.Civ.P. 12(b)(2); (3) that service of process was insufficient, Fed.R.Civ.P.
12(b)(4); and (3) that the Court should decline to exercise jurisdiction pursuant to the doctrine of
forum non conveniens. In a motion to dismiss, NAPL’s well-pleaded facts are taken as true, and
all reasonable inferences are drawn in its favor. Lachmund v. ADM Investor Servs., Inc., 191
F.3d 777, 782 (7th Cir. 1999). “A motion to dismiss will be granted only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Europaper B.V. v. Integrated Material Mgmt. Serv., Inc., No. 01 C 211, 2003 WL

21688233, at *1 (N.D. Ill. Jul. 17, 2003) (omitting quotations). Because I find that dismissing



Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). First, I must determine whether an adequate
alternative forum is available; second, I must weigh several private and public interest factors
related to the proper location for the litigation. Coco, 302 F.3d at 718. Private interests include
the relative ease of access to sources of proof; availability of compulsory process for the
attendance of unwilling witnesses; the possibility of viewing the premises, if necessary; and all
other practical problems that make trial of the case easy, efficient and economical. Kamel v.
Hill-Rom Co., Inc., 108 F.3d 799, 803 (7th Cir. 1997). Public factors include 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. Jd.

ISI International, Inc. v. Borden Ladner Gervais LLP, 316 F.3d 731 (7th Cir.), cert. den.,
123 S.Ct. 2608 (2003), is particularly helpful with this case. In JS/ International, a district court
granted a forum non conveniens motion sending a case to Ontario, Canada. Id. at 732. Although
the Seventh Circuit disagreed with the district court’s conclusion that the private and public
factors alone supported dismissing the case, the Court ultimately affirmed the dismissal of the
case under forum non conveniens:

[T]wo additional considerations lead us to conclude that the court did not abuse its

discretion in relegating IS/ International to the Canadian forum. First, Scott & Alyen no

longer exists. ... The parties dispute which among the entities, and who among the

individual partners, is liable for Scott & Alyen’s debts. The district judge was unable to

resolve this question, the parties have not reached agreement on it, and an Ontario court
may have to do so no matter what, if an effort is made to collect in Ontario any eventual



‘Minute Order Form (06/97)

ssl

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Zagel than Assigned Judge
CASE NUMBER 03 C 5010 DATE 11/10/2003
CASE NORTH AMERICA PROMOTIONS vs. FICODESA, ET AL
TITLE i
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) Q Answer brief to motion due___. Reply to answer brief due.
(4) im} Ruling/Hearing on set for at
(5) ie} Status hearing[held/continued to) [set for/re-set for] on set for at
(6) o Pretrial conference(held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for] on at
(8) Q (Bench/Jury trial] [Hearing] he!d/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C Local Rule 41.1 OFRCP41(a)(1) © FRCP41(a)(2).
do) wl [Other docket entry] Motion (4-1) to dismiss is granted. Enter memorandum opinion and
order.
(1) © [For further detail see order attached to the original minute order.]

|

SUN

No notices required, advised in open court,
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

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Document
Number

number of notices

Nov 27 2003

date docket
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109 LAMELSID SN

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judgment. If this aspect of the parties’ dispute is going to land in Ontario no matter what,
why not handle the whole suit there?

Id. at 732-33.

Here, CMD has identified Spain as an adequate alternative forum and pointed out several
private and public interests that weigh in favor of this case being transferred to Spain. As in JST
International, “[njone of these considerations so strongly supports the [Spanish] venue that the
plaintiff's choice must be overridden,” but an additional consideration leads me to conclude that
relegating this case to a Spanish forum is appropriate, namely that this case may eventually wind
up in Spain “no matter what.” Id. at 732-33. As in ISI International, there is an issue in this case
involving successor liability. In this case, however, any litigation involving the theory that CMD
is the successor in interest to FMG — a company currently going through bankruptcy proceedings
in Spain ~ would turn on Spanish law. Fed.R.Civ.P. 17(b) (“The capacity of a corporation to sue
or be sued shall be determined by the law under which it was organized.”); see, e.g, Binder v.
Bristol-Myers Squibb, Co., 184 F.Supp.2d 762, 768-69 (N.D. Ill. 2001). And under Spanish.
law, all judgments against a company within bankruptcy must be included in the bankruptcy
proceedings which produces the final order distributing the assets and discharging the claims.
Therefore, if NAPL were to get a judgment against either FMG or CMD in the United States, it
would likely be required to press its successor in interest claim before the Spanish tribunal
handling FMG’s bankruptcy proceedings. In other words, NAPL will have little choice but to
appear in a Spanish courtroom. This inevitability along with the private and public factors
discussed by CMD lead me to conclude that this case should be dismissed on the doctrine of

forum non conveniens.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS O0¢g:
EASTERN DIVISION WET
Noy lp
NORTH AMERICA PROMOTIONS, LTD., 2003
an Illinois corporation,

Plaintiff,
No. 03 C 5010
v. Judge James B. Zagel

FICODESA (MAGEFESA GROUP), a
Spanish corporation, COMPANIA
DEL MENAJE DOMESTICO S.L.;
MAGEFESA C, a Spanish corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Intersolving, Inc. and plaintiff North America Promotions, Ltd. (“NAPL”) were involved
together in importing and selling cookware that was designed and manufactured by defendant
Ficodesa (Magefesa Group), a Spanish corporation (“FMG”). In 1991, NAPL contracted with
Intersolving to provide that company with management services, and then Intersolving contracted
with FMG to serve as FMG’s United States distributor for cookware. The two contracts, taken
together, provided that FMG would indemnify Intersolving under certain circumstances, and that
Intersolving would in turn indemnify NAPL. FMG representatives allegedly traveled to Illinois
several times to negotiate the contract between FMG and Intersolving, and an FMG
representative may have come again to execute the contract. Subsequently, Intersolving began to
place regular orders with FMG for shipments of cookware, which FMG delivered directly to
Intersolving in Illinois. Intersolving sold the cookware to customers in Illinois and elsewhere,
and sent payment to FMG. An FMG representative also visited Illinois to assist in marketing the

cookware.

1


In 1996, FMG instructed NAPL to sell off the cookware inventory of Intersolving in order
to recover fees that Intersolving owed NAPL. NAPL did this, and in the process sold a pressure
cooker which allegedly injured Simon Wan of New York. Wan then filed a lawsuit in New York
state court against NAPL. The suit was eventually settled for $900,000.

NAPL has made a claim regarding that payment against FMG. In 1995, however, FMG
declared bankruptcy and is still in bankruptcy proceedings in Spain. Accordingly, NAPL has
joined in this lawsuit a Spanish corporation by the name of Compania Del Maneje Domestico
S.L. (“CMD”), which it claims is the successor in interest to FMG because it is the same business
operated prior to 1996 as FMG. From 1996 on, NAPL bought cookware products from CMD.
These products were made in the same factory that had been operated by FMG and were shipped
to Illinois from the same address in Spain. Also, the CMD employee with whom NAPL placed it
orders for CMD’s cookware is the same person to whom Intersolving had directed its orders for
FMG?’s cookware. Furthermore, when NAPL’s president visited CMD after 1996, he met with
the same persons with whom he met when he previously had made similar visits to FMG at the
same location and in his capacity as President of Intersolving. CMD currently represents in its
Internet advertising that NAPL is CMD’s United States distributor for its cookware and directs
all inquiries from customers in the United States seeking to purchase its products to NAPL.
CMD ships most of the cookware products that NAPL orders directly to NAPL’s Illinois
location, for resale to customers in Illinois and elsewhere. CMD has also contracted with NAPL
to control the extent to which NAPL may use the “Magefesa” trademark.

In response to the above allegations by NAPL, CMD alleges that the factory that NAPL’s

president visited was owned and operated by a company called Industrias Domesticas, S.A.