UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION 

Wham-O Holding, Ltd., et al. ) 

) 

 Plaintiff, ) Case No.: 1:20-cv-04196 

v. ) 

 ) Dist. Judge Matthew F. Kennelly 

Partnerships and Unincorporated 

Associations Identified on Schedule 

“A”, 

 ) 

) 

) 

Mag. Judge Maria Valdez 

 Defendants. ) 

Unreported Opinions Cited in Support of 

Motion to Vacate Default Judgment 

Case: 1:20-cv-04196 Document #: 78-2 Filed: 08/15/22 Page 1 of 20 PageID #:2529
Bally Export Corp. v. Balicar Ltd., Not Reported in F.Supp. (1985)

1985 WL 2006

 © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1

1985 WL 2006

Only the Westlaw citation is currently available.

United States District Court, N.D. Illinois, Eastern Division.

BALLY EXPORT CORPORATION,

a Delaware corporation, Plaintiff,

v.

BALICAR LTD., a foreign corporation,

and JULIANO INTERNATIONAL,

S.A., a foreign corporation, Defendants.

No. 81 C 516.

|

July 3, 1985.

MEMORANDUM OPINION AND ORDER

McGARR, District Judge.

*1 This matter is before the court on motions by defendants

Juliano Internacional S.A. (‘Juliano’) and Balicar, Ltd. to

vacate default judgments entered against them in this case

on July 7, 1981. When defendants originally brought this

motion before the court on May 9, 1985, the court expressed

some concern about the fact that nearly four years had passed

since the judgments were entered. Therefore, the court asked

the parties to file briefs addressing the question of when

defendants received notice of this action and why they waited

so long to file this motion.

A review of defendants' motions, however, reveals that both

defendants are attacking this court's personal jurisdiction over

them. They argue that the judgments entered against them are

void because they are foreign corporations which do not do

business in Illinois. Additionally, defendant Juliano contends

that the judgment against it is void because of ineffective

service of process. It is clear that a judgment entered by a

court which lacks personal jurisdiction over a defendant is

a void judgment and a court has a nondiscretionary duty to

grant relief from such a judgment. Thomas P. Gonzalez Corp.

v. Consejo Nacional de Produccion de Costa Rico, 614 F.2d

1247, 1255 (9th Cir. 1980). It is also clear that void judgments

cannot acquire validity as a result of laches on the part of

the defendant and they may be attacked at any time. Mesco

Leasing, Inc. v. Vaugh, 450 F.2d 257, 260 (10th Cir. 1971).

Thus, despite the fact that nearly four years have passed since

the judgments in this case were entered, since defendants

have attacked this court's personal jurisdiction, the court is

obligated to address the merits of defendants' motions.

Therefore, defendants are given 20 days to file their

memorandums in support of their motions to vacate. Plaintiff

is given 20 days thereafter to respond and defendants, 10 days

thereafter to reply.

All Citations

Not Reported in F.Supp., 1985 WL 2006

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

Case: 1:20-cv-04196 Document #: 78-2 Filed: 08/15/22 Page 2 of 20 PageID #:2530
Gersbacher v. Larsen, Not Reported in F.Supp. (1991)

1991 WL 18425

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1991 WL 18425

Only the Westlaw citation is currently available.

United States District Court, N.D. Illinois, Eastern Division.

Diana GERSBACHER, Plaintiff,

v.

Robert LARSEN, Defendant.

No. 90 C 4692.

|

Feb. 5, 1991.

Attorneys and Law Firms

Mary Kay Thanos, Crown Point, Ind., for plaintiff.

James M. Dupree, Chicago, Ill., for defendant.

MEMORANDUM OPINION

ELAINE E. BUCKLO, United States Magistrate Judge.

*1 Diana Gersbacher, a resident of Indiana, has brought

suit against Robert Larsen, a resident of Illinois, for injuries

she sustained when she fell down a staircase in an apartment

building Mr. Larsen owned. Jurisdiction is based upon

diversity of citizenship. Ms. Gersbacher's attorney, Mary Kay

Thanos, filed the complaint on August 13, 1990. On August

23, 1990, she sent Mr. Larsen a file-stamped copy of the

complaint and summons by certified mail. Affidavit of Mary

Kay Thanos (Ms. Gersbacher's attorney) (“Thanos Aff.”) ¶ 5.

The return receipt (“green card”) came back to Ms. Thanos

and was signed by Mr. Larsen. However, no appearance,

answer or any other responsive pleading was filed on Mr.

Larsen's behalf in this case. Consequently, Ms. Gersbacher

moved for a default judgment on September 26, 1990 before

Judge Bua. On September 27, 1990, Judge Bua conducted

a hearing on damages and granted plaintiff's motion for

default judgment, entering judgment against Mr. Larsen for

$500,000.

Mr. Larsen claims that, although he received a certified letter

from Ms. Thanos, it only contained a minute order which

informed him of a status date in the case. Affidavit of Robert

Larsen (“Larsen Aff.”) ¶ 5. As a result, Mr. Larsen claims

that he never received proper service of the summons and

complaint, and moves to quash and vacate the judgment. This

case has been assigned to me pursuant to the consent of the

parties. Mr. Larsen's motion is granted.

As a general matter, the Seventh Circuit has a “wellestablished policy favoring a trial on the merits over a

default judgment.” Anilina Fabrique de Colorants v. Aakash

Chemicals & Dyestuffs, Inc., 856 F.2d 873, 878 (7th

Cir.1988). This is especially true when the judgment involves

large sums of money as it does in this case. Ellingsworth v.

Chrysler, 665 F.2d 180, 185 (7th Cir.1981); In re Phoenix

Realty Corp., Nos. 78 C 4117 and 78 C 4118 slip. op.

(N.D.Ill., April 3, 1979) (available on LEXIS). However,

a party seeking to vacate a default judgment must meet

the requirements of Fed.R.Civ.P. 60(b) to be successful.

Fed.R.Civ.P. 55(c).

Rule 60(b) provides:

On motion and upon such terms as are just, the court may

relieve a party by a party's legal representative from a final

judgment, order, or proceeding for the following reasons: (1)

mistake, inadvertence, surprise or excusable neglect; .... (4)

the judgment is void.

Fed.R.Civ.P. 60(b).

Mr. Larsen contends that the default judgment should be

vacated because he was never properly served with the

complaint. Improper service destroys a court's personal

jurisdiction, making any judgment issued against the

improperly served party void. Trustees of Local Union No.

727 Pension Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 50

(N.D.Ill.1989). Thus, if Mr. Larsen was improperly served,

the default judgment must be vacated pursuant to Rule 60(b)

(4).

Ms. Gersbacher argues that the fact her attorney personally

sent the summons and complaint to Mr. Larsen and the

fact that he signed the green card and it was mailed back

to her establishes that Mr. Larsen was served. I disagree.

Ms. Gersbacher attempted to serve Mr. Larsen pursuant to

Fed.R.Civ.P. 4(c)(2)(C)(ii) which provides that service may

be had upon an individual:

*2 by mailing a copy of the summons and of the

complaint (by first-class mail, postage prepaid) to the person

to be served, together with two copies of a notice and

acknowledgement conforming substantially to form 18–A

and a return envelope, postage prepaid, addressed to sender.

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Gersbacher v. Larsen, Not Reported in F.Supp. (1991)

1991 WL 18425

 © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2

If no acknowledgement of service under this subdivision of

this rule is received by the sender within 20 days after the date

of mailing, service of such summons and complaint shall be

made under subparagraph (A) or (B) of this paragraph in the

manner prescribed by subdivision (d)(1) or (d)(3).

Fed.R.Civ.P. 4(c)(2)(C)(ii)1

Accordingly, in order to have effectively served Mr. Larsen

pursuant to this subsection, Ms. Gersbacher must have

received a returned acknowledgement form within 20 days

of mailing the summons and complaint. “[S]ervice under

Fed.R.Civ.P. 4(c)(2)(C)(ii) is not effective without return of

the acknowledgement form or another authorized method

of service.” Dean v. K.I.S. Corp., 121 F.R.D. 74, 76

(N.D.Ill.1988).

Ms. Gersbacher has presented no evidence to show that

Mr. Larsen signed and returned an acknowledgement form.

Indeed, the form Ms. Gersbacher has attached to her

motion in opposition to the motion to vacate and quash

the default judgment was not executed by Mr. Larsen.

Accordingly, when Ms. Gersbacher failed to receive an

executed acknowledgement form after 20 days from the date

she mailed the complaint, she had to serve Mr. Larsen by

some other method of service authorized under the Rule.

Lewellen v. Morley, 875 F.2d 118, 119 (7th Cir.1989). No

evidence has been presented to show me that Ms. Gersbacher

did so. Accordingly, the default judgment is void. Mr. Larsen's

motion to vacate and quash the default judgment is therefore

granted.2

All Citations

Not Reported in F.Supp., 1991 WL 18425

Footnotes

1 While the rule provides for first-class postage, certified mail does not make service under the rule improper when the

acknowledgement forms are returned. Lenoir v. Federal Deposit Ins. Corp., 709 F.Supp. 830, 832 (N.D.Ill.1989).

2 Mr. Larsen also raises excusable neglect (for his failure to receive proper service) and Ms. Gersbacher's misconduct (for

delay in producing a timely copy of the green card after he requested it) as other grounds in support of his motion. I need

not reach these issues in light of my disposition of this motion.

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

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Lexington Insurance Company v. Zurich Insurance (Taiwan) Ltd., 286 F.Supp.3d 982...

2017 WL 6550480

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286 F.Supp.3d 982

United States District Court, W.D. Wisconsin.

LEXINGTON INSURANCE

COMPANY, Plaintiff,

v.

ZURICH INSURANCE (TAIWAN) LTD.

and Taian Insurance Co., Ltd., Defendants.

16–cv–740–jdp

|

Signed 12/21/2017

Synopsis

Background: Bicycle manufacturer's general liability insurer

brought action seeking contribution from manufacturer's

indirect insurers following settlement of personal injury

action arising out of bicycle defect. Indirect insurers moved

to dismiss for lack of personal jurisdiction.

Holdings: The District Court, James D. Peterson, J., held that:

indirect insurers did not purposefully avail themselves of

the privilege of doing business in Wisconsin, as required to

support specific personal jurisdiction, and

exercise of personal jurisdiction over the insurers would

offend traditional notions of fair play and substantial justice.

Motions granted.

Attorneys and Law Firms

*984 Amy Julia Collins Cassidy, Amy P. Klie, Nicolaides

Fink Thorpe Michaelides Sullivan LLP, Chicago, IL, for

Plaintiff.

Brenden Leib, Samuel J. Leib, Leib Knott Gaynor LLC,

Thomas R. Schrimpf, Hinshaw & Culbertson LLP, for

Defendants.

OPINION & ORDER

JAMES D. PETERSON, District Judge

**1 This insurance dispute arises from an accident in

Texas in which a Louisiana resident was seriously injured

while riding a Trek bicycle. Plaintiff, Massachusetts-based

Lexington Insurance Company, insured Wisconsin-based

Trek Bicycle Corp. Lexington settled a lawsuit on Trek's

behalf, and now it seeks contributions from defendants Zurich

Insurance (Taiwan) Ltd. and Taian Insurance Co., Ltd. Zurich

and Taian insured the manufacturers of some *985 of the

components of the bicycle, and thus they are indirect insurers

of Trek.

Zurich and Taian move to dismiss for lack of personal

jurisdiction and for improper venue. Dkt. 13 and Dkt. 22. The

evidence shows that Zurich and Taian had only attenuated

contacts with Wisconsin, and the assertion of jurisdiction

would not comport with constitutional due process. The court

will grant Zurich's and Taian's motions to dismiss under

Federal Rule of Civil Procedure 12(b)(2) for lack of personal

jurisdiction. All other pending motions will be denied as

moot.

FACTS

In deciding a motion to dismiss for lack of personal

jurisdiction, the court may consider the well-pleaded

allegations in the complaint, affidavits, and written materials.

Kipp v. Ski Enter. Corp. of Wis., Inc., 783 F.3d 695, 697 (7th

Cir. 2015); Purdue Research Found. v. Sanofi–Synthelabo,

S.A., 338 F.3d 773, 782 (7th Cir. 2003)). Here, the court draws

the following facts from Lexington's complaint, affidavits

from the parties, and relevant contracts. The court can decide

the issue on written evidence without an evidentiary hearing

because the material facts are not disputed. See Abbott Labs.,

Inc. v. BioValve Techs, Inc., 543 F.Supp.2d 913, 918 (N.D. Ill.

2008) (citing Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th

Cir.2002)).

Lexington is a Delaware company with its principal place of

business in Massachusetts. Defendants Zurich and Taian are

both insurance companies organized in the Republic of China

(Taiwan).1

A. The Texas lawsuit

In 2012, Louisiana resident James Giessler rented a Trek

mountain bike in Texas. The front wheel of the bike detached

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from the bike's frame, and Giessler sustained permanent

serious injuries. Giessler, his wife, and his son filed a lawsuit

in Texas against Trek, Mellow Johnny's LLC (the business

that rented the bike to Giessler), and SRAM, LLC, and Rock

Shox (both manufacturers of the bike's component parts). On

the eve of the trial, the case settled. Lexington, an insurer for

Trek, indemnified Trek and paid the settlement.

Zurich and Taian were not parties to the Texas lawsuit.

Zurich had insured the manufacturer of the bike, Giant

Manufacturing Co., Ltd., a Taiwanese company. Taian

had insured the manufacturer of the bike wheel, Hubtec

International Ltd. a/k/a Formula Hubs, also a Taiwanese

company. Neither Zurich nor Taian had insured Trek directly,

but they both had extended insurance coverage to Trek by

allowing Trek to be named as an additional insured under

the policies issued to Giant and Formula Hubs. Lexington

demanded that Zurich and Taian contribute to the cost of

defending Trek and the settlement amount, but Zurich and

Taian refused.

B. Defendants' contacts with Wisconsin

**2 Neither Zurich nor Taian does business in Wisconsin.

The parties agree that for the purposes of this dispute, Zurich

and Taian have no contact with Wisconsin other than the

insurance policies that name Trek as an additional insured.

The two insurance policies at issue were negotiated and

signed in Taiwan. Lexington is a party to neither policy.

1. Zurich Policy

The first insurance policy (the Zurich Policy) is an agreement

between Zurich and Giant. Dkt. 1–2. The policy includes

*986 Giant's vendors as “[A]dditional Insured” and lists

Trek as one of Giant's vendors. Id. at 4, 6.

Under the Zurich Policy, Zurich agreed to indemnify

Giant and its vendors for “[c]ompensation resulting from

judgments delivered by or obtained from a court of competent

jurisdiction in the Geographical Limits” and “charges,

expenses, and legal costs incurred or recoverable in the

Geographical Limits.” Id. at 12. The term “Geographical

Limits” is defined as “the Geographical Limits stated in the

Schedule,” id. at 16, and the Schedule provides that the

Geographical Limits is “worldwide,” id. at 2.

The Zurich Policy also includes an arbitration clause. The

clause provides,

If any difference arises as to the amount to be paid

under this Policy (liability being otherwise admitted) such

difference will be referred to an arbitrator in accordance

with the relevant statutory provisions in force at that time

or, if there are no relevant statutory provisions in force,

by agreement between Zurich and the Insured. Where any

difference is by this Condition to be referred to arbitration

the making of an award will be a condition to precedent to

any right of action against Zurich.

Id. at 18. The Zurich Policy is governed by Taiwanese law.

Id. at 12. The policy allows Zurich to control the litigation or

settlement of any covered claim against an insured, but Zurich

has no obligation to do so. Id. at 18.

2. Taian Policy

The second insurance policy at issue is an agreement between

Taian and Formula Hubs (the Taian Policy). Dkt. 26–2

and Dkt. 26–4. Like the Zurich Policy, the Taian Policy's

insurance coverage extends to Formula Hub's vendors. The

Taian Policy as filed with the court does not include a list

of Formula Hub's vendors, but such a list is contemplated.

Dkt. 26–4, at 18. Taian sent Trek a certificate of insurance,

and the certificate states that Trek is insured “in conjunction

with” the Taian Policy. Dkt. 1–4, at 2. and Dkt. 26–2, at 1. The

certificate includes a territorial limit, but the term “Territorial

Limit” is defined as “Worldwide including USA/Canada.”

Dkt. 1–4 at 1.

Under the section titled “applicable law and jurisdiction,”

Taian and Formula Hub agreed to litigate their disputes

applying “the law and practice” of Taiwanese courts:

Each party agrees to submit to the jurisdiction of any

court of competent jurisdiction within Taiwan and to

comply with all requirements necessary to give such

court jurisdiction. All matters arising hereunder shall be

determined in accordance with the law and practice of such

court.

Dkt. 26–2, at 12. The policy gives Taian a right, but not

an obligation, to control the litigation or settlement of any

covered claim against an insured. Id. at 10.

ANALYSIS

A. Motions to dismiss

Zurich and Taian both contend that the court should dismiss

the case for lack of personal jurisdiction under Rule 12(b)

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(2) and for improper venue under Rule 12(b)(3). Zurich also

contends that the service of process on Zurich was improper

under Rule 12(b)(5). The court will dismiss the case for lack

of personal jurisdiction, and thus it need not reach the venue

and service issues.

**3 The personal jurisdiction analysis has two steps.

First, the court determines whether the long-arm statute

of the forum state, in this case Wisconsin, would reach

the defendants. The Wisconsin statute must be construed

“liberally in favor of the exercise of personal jurisdiction.”

*987 Rasmussen v. Gen. Motors Corp., 2011 WI 52, ¶¶ 16–

17, 335 Wis. 2d 1, 13, 803 N.W.2d 623, 629. Second, the

court must determine “whether the exercise of jurisdiction

comports with due process requirements.” Id. ¶ 16 (quoting

Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶ 8, 245 Wis. 2d

396, 409, 629 N.W.2d 662, 667). “The plaintiff has a ‘minimal

burden’ of showing that the statutory and constitutional

requirements are met,” and the court must resolve any “factual

doubt” in favor of the plaintiff. Id. (quoting Kopke, 2001 WI

99, ¶ 8, 245 Wis.2d 396, 629 N.W.2d 662).

Neither Zurich nor Taian does business in Wisconsin, and

Lexington concedes that they are not subject to general

jurisdiction here. For their part, Zurich and Taian concede

that their activities would satisfy Wisconsin's long-arm statute

applicable to insurance actions, which applies to any action

that arises from “a promise made anywhere to the plaintiff or

some 3rd party,” when the “person insured” was a Wisconsin

resident “when the event out of which the cause of action

is claimed to arise occurred.” Wis. Stat. § 801.05(10).

So the question here is whether the assertion of specific

jurisdiction over defendants would comport with the due

process requirements under the Constitution.

Three requirements must be satisfied: (1) the defendant must

have sufficient minimum contacts with the forum; “(2) the

alleged injury must have arisen from the defendant's forumrelated activities”; and “(3) the exercise of jurisdiction must

comport with traditional notions of fair play and substantial

justice.” Felland v. Clifton, 682 F.3d 665, 673 (7th Cir. 2012).

Lexington bears the burden on the first two requirements;

Zurich and Taian have the burden on the third. See Carlson

v. Fid. Motor Grp., LLC, 2015 WI App 16, ¶ 10, 360 Wis. 2d

369, 376, 860 N.W.2d 299, 302.

1. Minimum contacts

The minimum-contacts analysis varies depending on the

nature of the claim. Felland, 682 F.3d at 674. “There is

no ‘pendent’ or ‘supplemental’ theory of specific personal

jurisdiction,” so when a plaintiff asserts multiple claims,

“personal jurisdiction over the defendant must be established

as to each claim asserted.” MG Design Assocs., Corp. v.

Costar Realty Info., Inc., 224 F.Supp.3d 621, 629 (N.D. Ill.

2016) (quoting In re Testosterone Replacement Therapy Prod.

Liab. Litig. Coordinated Pretrial Proceedings, 164 F.Supp.3d

1040, 1048 (N.D. Ill. 2016)).

Lexington asserts five causes of action: (1) declaratory

judgment that Zurich must pay Lexington under the

Zurich Policy; (2) declaratory judgment that Taian

must pay Lexington under the Taian Policy; (3)

“Reimbursement / Contribution / Equitable Subrogation–

Defense”; (4) “Reimbursement / Contribution / Equitable

Subrogation–Indemnification”; and (5) unjust enrichment.

Dkt. 1, ¶¶ 69–104. The first two are contract claims, as

they ask the court to interpret the Zurich Policy and the

Taian Policy. The contribution claims are tort claims, and the

remainder of the claims arise under equity, although these

claims are all closely related to the contract claims. Lexington

does not attempt to assess jurisdiction for each of its claims

separately but instead characterizes all the claims as contract

claims for the minimum-contacts analysis. The court will

follow suit. Lexington fares no better with tort or equitable

claims, and Lexington has waived any argument that it would.

**4 In contract cases, the question is whether the defendant

availed itself of “the privilege of conducting business in the

forum state.” Felland, 682 F.3d at 674. The court considers

“only the ‘dealings between the parties in regard to the

disputed contract’ that are relevant to minimum *988

contacts analysis.’ ” RAR, Inc. v. Turner Diesel, Ltd., 107

F.3d 1272, 1278 (7th Cir. 1997) (quoting Vetrotex Certainteed

Corp. v. Consolidated Fiber Glass Prods. Co., 75 F.3d 147,

153 (3d Cir. 1996)) (emphasis in original). For example,

“prior negotiations and contemplated future consequences,

along with the terms of the contract and the parties' actual

course of dealing may indicate the purposeful availment

that makes litigating in the forum state foreseeable to the

defendant.” Hyatt Int'l Corp., 302 F.3d at 716 (quoting Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 479, 105 S.Ct. 2174,

85 L.Ed.2d 528 (1985)). The court may also consider the

parties' choice of law to see whether the defendant availed

itself of the forum state's laws. See Purdue Research Found.,

338 F.3d at 786.

Here, Zurich and Taian have done none of the things that

typically demonstrate purposeful availment of the privilege of

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doing business in Wisconsin. Neither Zurich nor Taian does

business or advertises in Wisconsin. Neither the Zurich Policy

nor the Taian Policy mentions Wisconsin. Both policies

are contracts between Taiwanese companies. Both were

negotiated, drafted, and signed in Taiwan. Both insurance

policies are governed by Taiwanese law. Trek did not

participate in negotiating the policies; its only connection

to these policies are through Giant and Formula Hubs, the

Taiwanese companies insured by Zurich and Taian.

Nevertheless, Lexington contends that the court should find

purposeful availment because (1) Zurich and Taian issued

insurance policies containing worldwide coverage territory,

showing that they contemplated being haled into a Wisconsin

court; and (2) Zurich and Taian committed to ongoing

obligations to Trek, a Wisconsin resident. The court will

address each argument in turn.

a. Worldwide coverage

Lexington contends that the worldwide coverage territory

extended under both policies establishes purposeful

availment. None of the parties (or the court) found Seventh

Circuit precedent directly on point. Lexington relies on nonbinding cases that have found purposeful availment when

the forum state is within the coverage territory, such as Eli

Lilly & Co. v. Home Ins. Co., 794 F.2d 710, 721 (D.C. Cir.

1986) and Ferrell v. W. Bend Mut. Ins. Co., 393 F.3d 786, 791

(8th Cir. 2005). These cases reason that an insurer defendant

has purposefully availed itself of the benefit of each forum

for which it has extended coverage. A thorough explanation

of this reasoning is in TH Agric. & Nutrition, LLC v. Ace

European Grp. Ltd., 488 F.3d 1282 (10th Cir. 2007). But

the view is not universally accepted, particularly when the

insurance contract does not obligate the insurer to defend

lawsuits in the forum. See, King v. Am. Family Mut. Ins. Co.,

632 F.3d 570, 580 n. 10 (9th Cir. 2011); Waste Mgmt., Inc. v.

Admiral Ins. Co., 138 N.J. 106, 118, 128, 649 A.2d 379, 385,

389 (1994). Still, Lexington has some persuasive authority on

its side.

Against the authorities cited by Lexington, Zurich relies

chiefly on the jurisdictional principles in Walden v. Fiore, –––

U.S. ––––, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). In Walden,

the Supreme Court reiterated that the “minimal contacts”

threshold requires that a defendant direct its activities to

the forum itself, not merely to forum residents. Id. at 1122.

Walden was a tort case involving a Bivens claim against

a Georgia law enforcement officer who seized cash from

Nevada residents when they were traveling through Atlanta.

Id. at 1119. Although the officer knew that the travelers were

from Nevada, and thus he knew that the harm of the seizure

would be felt there, the Court held that *989 this was not

a constitutionally sufficient minimum contact with Nevada.

Id. at 1125. In overruling the lower court decision, the Court

said that the lower court's analysis “obscures the reality that

none of petitioner's challenged conduct had anything to do

with Nevada itself.” Id. Zurich questions whether TH Agric.

& Nutrition would still stand after Walden. Although it is

not manifestly clear how various principles in Walden would

apply in a contract case, it is now decided that the “ ‘minimum

contacts’ analysis looks to the defendant's contacts with the

forum State itself.” Id. at 1122; accord Philos Techs., Inc. v.

Philos & D, Inc., 802 F.3d 905, 915 (7th Cir. 2015) (applying

Walden to a contract claim).

**5 The grant of worldwide coverage to Giant and Formula

Hubs does not entail any action directed specifically at

Wisconsin. It demonstrates awareness on the part of Zurich

and Taian that they might be called upon to cover Giants' or

Formula Hubs' liability for accidents that occur anywhere in

the world, including Wisconsin. But “foreseeability alone has

never been a sufficient benchmark for personal jurisdiction

under the Due Process Clause.” World–Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62

L.Ed.2d 490 (1980). And whether a covered accident actually

occurs in Wisconsin will be the result of actions by several

other parties: the insureds, Giant and Taian, decide to sell

components to certain companies; those companies, like Trek,

will decide where to sell their bicycles; and Trek's customers

will decide where to buy and ride them. At least in terms of the

coverage territory, Giant and Formula Hubs will have contacts

with Wisconsin based only on the actions of multiple third

parties. Thus, in this case defendants' contacts with the forum

state are even more attenuated than those in World–Wide

Volkswagen Corp., which were contacts made by third parties

and not sufficient minimum contacts to establish personal

jurisdiction.

Lexington argues that Zurich and Taian imposed higher

deductibles based on geography, reflecting a deliberate

assessment of the risks related to worldwide coverage. Dkt.

27, at 18; Dkt. 33, at 15. The Zurich Policy imposes higher

deductibles for claims arising outside China or Taiwan, Dkt.

1–2, at 2, and the Taian Policy has higher deductibles for

claims arising from the United States or Canada, Dkt. 26–2, at

2. But Lexington's argument on this point is undeveloped and

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not persuasive. Lexington does not explain how the higher

deductible applicable to all claims arising in the United States

and Canada reflects any intention by Zurich or Taian to avail

themselves of the benefits and protections of Wisconsin. And

without this explanation, Lexington cannot show that Zurich

or Taian reasonably anticipated being haled into court in

Wisconsin.

Quite to the contrary, the insurance contracts show that Zurich

and Taian intended to avoid litigation in foreign states. Both

policies include forum-selection clauses intended to foreclose

such litigation. Zurich chose arbitration, Dkt. 1–2, at 18,

and Taian chose Taiwanese courts, Dkt. 26–2, at 12. Even if

these forum-selection clauses were ultimately unenforceable,

as Lexington contends, they demonstrate that both Zurich

and Taian expected that they would not be litigating cases in

Wisconsin. The reasoning of the Tenth Circuit is informative

and applicable here:

An insurance company who issues a policy in which

it agrees to defend its insured in a certain forum can

undoubtedly foresee that it may have to provide a defense

for its insured who is haled into court there. It does not

follow, however, that by agreeing to defend in the forum,

that the insurance company also by implication agrees that

it will litigate disputes *990 between it and its insured

regarding the terms of an insurance contract in a foreign

forum. While it is reasonably foreseeable that an insured

would be involved in litigation with a third-party in another

forum, it is not necessarily foreseeable that a dispute

between the insured and the insurer over an insurance

contract prepared, negotiated, and executed pursuant to

Canadian law in Canada with a Canadian company would

be litigated in a foreign forum where neither party has any

contacts.

OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149

F.3d 1086, 1095 (10th Cir. 1998). Zurich and Taian might

expect to provide coverage for accidents that occur in

Wisconsin, but it would not follow that they would expect

to defend disputes over coverage in Wisconsin, which is

what Lexington contends here. Zurich and Taian do not have

sufficient minimum contacts to support jurisdiction based on

the worldwide coverage territory extended to their insureds.

One last point: even if worldwide coverage territory were

sufficient, it would be barely so. As the court explained in TH

Agric. & Nutrition, sufficient minimum contacts established

by the territory of insurance coverage are qualitatively weak,

and thus would require defendants to make a lesser showing

on the fairness prong of the analysis. 488 F.3d at 1292.

b. Ongoing obligations to a Wisconsin resident

**6 Lexington contends that because Zurich and Taian

included Trek as an additional insured under their policies,

they undertook continuing obligations to a Wisconsin

resident. Indeed, there are many cases holding that an insurer

who sells insurance to forum residents is amenable to personal

jurisdiction in the forum. This is an extension of the principle

that jurisdiction is proper “where business activities reach

out beyond one state and create continuing relationships and

obligations with citizens of another state.” Travelers Health

Ass'n v. Com. of Va. ex rel. State Corp. Comm'n, 339 U.S. 643,

647, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); accord Burger King

Corp., 471 U.S. at 475–76, 105 S.Ct. 2174.

But Zurich and Taian did not reach out to Wisconsin residents

and offer to sell them insurance coverage. Trek, the only

Wisconsin resident at issue, was insured by defendants only

because Giant and Formula Hubs sold bicycle components

to Trek, and defendants approved the inclusion of Trek

as an additional insured. As an additional insured under

those policies, Trek did not have general coverage for Trek

products, but only coverage for Trek's liability that might arise

from components supplied by Giant and Formula Hubs. The

Taian certificate of insurance issued to Trek does not alter the

Taian Policy:

This certificate is issued as a matter of information

only. This certificate does not amend, extend or alter the

coverage afforded by the polices above, and all coverage

terms and conditions follow the original wordings to be

issued.

Dkt. 1–4, at 2. Thus, Zurich's and Taian's obligation to

Trek is contingent and probabilistic, arising only when there

is a claim related to components supplied by Giant or

Formula Hubs. “The inquiry whether a forum State may assert

specific jurisdiction over a nonresident defendant ‘focuses

on the relationship among the defendant, the forum, and the

litigation.’ ” Walden, 134 S.Ct. at 1121 (quoting Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473,

79 L.Ed.2d 790 (1984)). Lexington does not allege or adduce

evidence that its claims arise from the components supplied

by Giant or Formula Hubs. Nor did Giessler during the Texas

lawsuit; Giant *991 and Formula Hubs were not parties in

that case.

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Lexington relies on two decisions to support its argument

that naming Trek as an additional insured is tantamount

to selling insurance to Trek, and thus a sufficient basis

for personal jurisdiction: Ridemind, LLC v. S. China Ins.

Co., No. 14-cv-489, 2014 WL 2573310, at *1 (W.D. Wash.

June 9, 2014); Chace v. Dorcy Internatl., Inc., 68 Ohio

App. 3d 99, 109, 587 N.E.2d 442, 448 (1991). These cases

are of course not binding, although defendants have not

cited any directly contrary authority dealing with jurisdiction

on the basis of an “additional insured” relationship. But

defendants are correct that neither of these cases considered

Walden, which expresses a much narrower view of personal

jurisdiction. After Walden, the Taian certificate, which is

“purely informational” on its face and only “incidental” to an

existing contract, does not confer personal jurisdiction. See

Philos Techs., 802 F.3d at 915. And the existence of a contract

with a forum resident is not, in itself, a sufficient minimum

contact for jurisdictional purposes. Id. at 913 (“Standing

alone, the fact that a foreign party has formed a contract with

an in-state party is often insufficient to supply the minimum

contacts required by the Constitution.” (citing Burger King,

471 U.S. at 478, 105 S.Ct. 2174)).

Defendants' connection to Wisconsin is truly attenuated, even

in light of their consent to including Trek as an additional

insured on the Taiwanese contracts. Zurich and Taian did

not purposefully avail themselves of the privilege of doing

business in Wisconsin, and they lacked sufficient minimum

contacts with Wisconsin. And because Zurich and Taian had

no activity related to Wisconsin, Lexington's injury did not

arise from any forum-related activity.

2. Traditional notions of fair play and substantial justice

**7 Even if Zurich and Taian had sufficient minimum

contacts, and the case arose from forum-related activities, the

court cannot exercise personal jurisdiction over a defendant

if doing so would offend traditional notions of fair play and

substantial justice. See Int'l Shoe Co. v. State of Wash., Office

of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66

S.Ct. 154, 90 L.Ed. 95 (1945). To assess whether exercising

personal jurisdiction comports to traditional notions of fair

play and substantial justice, the court may consider five

factors: (1) “the burden on the defendant”; (2) “the forum

state's interest in adjudicating the dispute”; (3) “the plaintiff's

interest in obtaining convenient and effective relief”; (4)

“the interstate judicial system's interest in obtaining the most

efficient resolution of controversies”; and (5) “the shared

interest of the several [s]tates in furthering fundamental

substantive social policies.” uBID, Inc. v. GoDaddy Grp., Inc.,

623 F.3d 421, 432 (7th Cir. 2010).

The first factor, the burdens on Zurich and Taian, tips against

exercising personal jurisdiction. “The unique burdens placed

upon one who must defend oneself in a foreign legal system

should have significant weight.” Asahi Metal Indus. Co. v.

Superior Court of California, Solano Cty., 480 U.S. 102, 114,

107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Here, both Zurich and

Taian are Taiwanese companies. They maintain no office and

employ no agent in Wisconsin. Zurich and Taian must expend

considerable resources to litigate in a foreign legal system.

The second factor, Wisconsin's interest in adjudicating the

dispute, tips against exercising personal jurisdiction. Trek,

the only Wisconsin resident, is not a party to this case. And

Lexington does not argue that Wisconsin law should apply.

Instead, *992 Lexington contends that Wisconsin has an

interest in adjudicating this case because Lexington's claim

“serves a policing purpose, ensuring that a foreign insurer

cannot simply ignore its coverage obligations to a Wisconsin

insured.” Dkt. 27, at 23. As discussed above, defendants did

not directly insure Trek, so Wisconsin's interest in regulating

the insurers of a Wisconsin resident is diffuse here. And this

kind of “overly broad” interest has been rejected. See Asahi

Metal Indus., 480 U.S. at 114, 107 S.Ct. 1026 (rejecting the

argument that California has an interest in “protecting its

consumers by ensuring that foreign manufacturers comply

with the state's safety standards.”). Thus, Wisconsin has no

significant interest in adjudicating this case.

The third factor, Lexington's interest in obtaining convenient

and effective relief, tips somewhat in favor of personal

jurisdiction. Just as Zurich and Taian have the burdens of

litigating here in a legal system foreign to them, Lexington

will face similar burdens if it litigates in Taiwan. But

Lexington is not seeking to litigate in its home forum, so this

factor weighs only slightly in Lexington's favor.

The fourth factor, the interstate judicial system's interest in

obtaining the most efficient resolution of controversies, tips

against exercising personal jurisdiction. Lexington concedes

that “[t]his lawsuit turns on the construction of insurance

policies.” Dkt. 27, at 24.2 Both the Zurich Policy and the Taian

Policy are governed by Taiwanese law. So the court cannot

resolve Lexington's claims without applying Taiwanese law,

and therefore the arbitrators and judges in Taiwan are better

suited to address Lexington's claims. The witnesses who

can testify as to the contracting parties' dealings and the

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manufacturing process of the bicycle parts are in Taiwan.

Perhaps some witnesses who can testify about the bicycle

accident are in Texas. But given Lexington's position that its

claims turn on the construction of the insurance policies, any

testimony of a witness in the United States is ancillary to this

case. The most efficient way to resolve this case is through

adjudication in Taiwan.

**8 The fifth factor, the shared interest of nations, tips

against personal jurisdiction. As the Supreme Court has

explained, “Great care and reserve should be exercised

when extending our notions of personal jurisdiction into the

international field.” Asahi Metal Indus., 480 U.S. at 115,

107 S.Ct. 1026. The nations' shared interest is “best served

by ... an unwillingness to find the serious burdens on an alien

defendant outweighed by minimal interests on the part of the

plaintiff or the forum State.” Id. Because Wisconsin has a

minimal interest as noted above, the court concludes that the

fifth factor, too, tips against exercising personal jurisdiction.

On balance, the only factor that tips in favor of exercising

personal jurisdiction is the third factor, Lexington's interest.

All other factors tip against exercising personal jurisdiction.

The court concludes that exercising personal jurisdiction over

Zurich and Taian would clearly offend traditional notions of

fair play and substantial justice.

*993 The court will grant Zurich's and Taian's motions

to dismiss for lack of personal jurisdiction. The court need

not reach other issues raised by the parties, such as those

pertaining to venue and service.

B. Other motions

The parties have filed numerous motions pertaining to the

arbitration proceedings between Zurich and Lexington.3

These motions all pertain to Lexington's efforts to enjoin

Zurich from arbitrating its disputes with Lexington.

After Lexington filed its complaint, Zurich commenced

an arbitration proceeding against Lexington in Taiwan.

Lexington then moved for a preliminary injunction to enjoin

Zurich from arbitrating. Before the court issued an order

ruling on Lexington's motion for a preliminary injunction,

the arbitral tribunal ruled against Lexington, reasoning that

Lexington's claims are time-barred under Taiwanese law.

Dkt. 53, ¶ 12. Lexington now seeks a declaratory judgment

that Lexington had no obligation to arbitrate and that the

arbitration clause is unenforceable against Lexington. Dkt.

54–1, ¶¶ 123–136. The court will deny these motions.

The court lacks personal jurisdiction over Zurich, so the court

cannot grant injunctive relief against it. See Advanced Tactical

Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d

796, 800 (7th Cir. 2014) (“In order for the district court's

preliminary injunction to be valid, that court had to have

personal jurisdiction over the defendant.”). And the court will

dismiss this case, so all pending motions are moot.

One last point about Lexington's resistance to arbitration. The

subtext in Lexington's numerous submissions is clear: the

court should hurry up and decide Lexington's motions and

enjoin Zurich from arbitrating. But Lexington's request for an

injunction is an extreme long shot. As the Seventh Circuit has

made clear,

Where's the irreparable injury? If AT & T loses in the

arbitration, the union will seek to enforce its victory; AT

& T can defend on the theory that it had not agreed

to arbitrate this kind of dispute. Delay would not cause

irreparable injury, so there is no justification for an

injunction. All AT & T could lose from the delay is the

cost of presenting the arguments to the arbitrator, and it has

long been established that the expense of adjudication is

not irreparable injury.... So fundamental is this principle

that we have held it sanctionably frivolous to seek an antiarbitration injunction.

**9 AT & T Broadband, LLC v. Int'l Bhd. of Elec. Workers,

317 F.3d 758, 762 (7th Cir. 2003) (collecting cases); accord

Sherwood v. Marquette Transp. Co., LLC, 587 F.3d 841,

845 (7th Cir. 2009). It might not be literally impossible to

get an injunction to forestall an arbitration. But this case

—in which Lexington seeks compensation for a completed

personal injury litigation—doesn't seem like the case in which

the court should depart from its well-established approach to

the topic.

*994 ORDER

IT IS ORDERED that:

1. Defendant Zurich Insurance (Taiwan) Ltd.'s motion's to

amend the case caption, Dkt. 44, is GRANTED. The

clerk of court is directed to substitute Zurich Insurance

(Taiwan) Ltd. with defendant Hotai Insurance Co., Ltd.

2. Defendant Hotai Insurance Co., Ltd.'s motion to dismiss,

Dkt. 13, is GRANTED.

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3. Defendant Taian Insurance Co., Ltd.'s motion to dismiss,

Dkt. 22, is GRANTED.

4. All other motions are DENIED.

5. This case is DISMISSED.

6. The clerk of court is directed to enter judgment in

favor of defendants Hotai Insurance Co., Ltd. and Taian

Insurance Co., Ltd. and close the case.

All Citations

286 F.Supp.3d 982, 2017 WL 6550480

Footnotes

1 Zurich has changed its name to Hotai Insurance Co. Ltd. and moved to amend the case caption to reflect its new name.

Dkt. 44, at 2. But all relevant documents and the parties' briefs refer to Hotai by its old name, so the court will use its

old name for clarity.

2 Contribution claims require Lexington to show that Zurich and Taian are “liable for the same obligation” as Lexington,

so the court must look to the Zurich Policy and the Taian Policy. Kafka v. Pope, 194 Wis. 2d 234, 243, 533 N.W.2d 491

(1995). Likewise, the reimbursement claims require Lexington to show that Zurich and Taian breached their insurance

contracts with Trek. See Fabco Equip., Inc. v. Kreilkamp Trucking, Inc., 2013 WI App 141, ¶ 15, 352 Wis. 2d 106, 841

N.W.2d 542. As for the unjust enrichment claims, Lexington's theory is that Zurich and Taian were unjustly enriched

because they did not pay for Trek's defense despite their obligations under their insurance policies. Dkt. ¶¶ 97–98.

3 See Dkt. 35 (Lexington's motion to amend complaint seeking declarations that Lexington need not arbitrate); Dkt. 36

(Lexington's motion for preliminary injunction to enjoin Zurich from pursuing arbitration); Dkt. 43 (Lexington's motion for

reconsideration on the court's order to stay briefing on motion for preliminary injunction); Dkt. 46 (Lexington's motion for

leave to file reply for motion for reconsideration); Dkt. 48 (Lexington's motion for leave to file notice of factual development

about the ongoing arbitration); Dkt. 54 (Lexington's motion for leave to file amended complaint); Dkt. 55 (Zurich's motion

to stay briefing on motion for leave to file amended complaint); Dkt. 56 (Taian's motion to stay briefing on motion for

leave to file amended complaint).

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

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2014 WL 6888446

Only the Westlaw citation is currently available.

United States District Court, C.D. Illinois,

Urbana Division.

Mackenzie SHRUM, Plaintiff,

v.

BIG LOTS STORES, INC., Lohia Group

of Industries a/k/a Lohia Business Group

a/k/a Lohia Group, Designco Overseas

Private Limited a/k/a Designco India a/k/

a Designco, and Bureau Veritas Consumer

Products Services, Inc., Defendants.

Case No. 3:14–cv–03135–CSB–DGB

|

Signed December 8, 2014

Attorneys and Law Firms

James P. Ginzkey, Ginzkey Law Office, Bloomington, IL, for

Plaintiff.

Edward P. Gibbons, Kyle Taylor Geiger, Walker Wilcox

Matousek LLP, Chicago, IL, Alexander Bogdan, Theodore

V.H. Mayer, Eric Blumenfeld, Hughes Hubbard & Reed LLP,

New York, NY, John E. Thies, Kara J. Wade, Webber & Thies

PC, Urbana, IL, for Defendants.

OPINION

COLIN S. BRUCE, U.S. DISTRICT JUDGE

*1 This case is before the court for ruling on the Motion

to Dismiss Plaintiff's Amended Complaint (# 6) filed by

defendant Bureau Veritas Consumer Products Services, Inc.

(BVCPS). This court has carefully considered the arguments

of and the documents provided by the parties. Following this

careful and thorough review, Defendant's Motion to Dismiss

Plaintiff's Amended Complaint (# 6) is GRANTED.

FACTS

This is a products-liability case. Mackenzie Shrum (Plaintiff),

a minor, filed a Complaint (# 1) on May 6, 2014,1 alleging

that, on May 18, 2013, a Mosaic Glass Tabletop Torch (torch)

that her father, Jarrod Shrum, bought along with citronella

fuel from defendant Big Lots exploded when she tried to

extinguish its flame by blowing on the wick, covering her with

burning fuel and causing her to suffer third degree burns to

forty percent of her body.

Plaintiff states that defendants Lohia Group of Industries

and Designco Overseas Private Limited (together, Designco)

designed, manufactured, labeled, supplied, and distributed the

torch, while Big Lots purchased for resale, labeled, marketed,

distributed, and sold the torch. Plaintiff only alleges that

BVCPS tested the torch for safety and compliance prior

to its labeling, marketing, importation, distribution, sale,

and resale. Plaintiff is asserting the following causes of

action against Designco, Big Lots, and BVCPS: (1) strict

products liability, design defect; (2) strict products liability,

manufacturing defect; (3) strict products liability, marketing

defect; and (4) negligence. Plaintiff is also asserting a cause

of action against Designco and Big Lots for breach of implied

warranty.

Plaintiff is a resident and citizen of Illinois. Big Lots is

an Ohio corporation that has its headquarters and principal

place of business in Ohio. Lohia Group of Industries and

Designco Overseas Private Limited are India corporations

that have their principal place of business in India. BVCPS

is a Massachusetts corporation that has its headquarters and

principal place of business in New York. This court sits in

diversity.

BVCPS has over 100 offices and laboratories around the

world and a presence in every major sourcing and selling

territory. It performs product inspection, product certification,

and factory assessment services, but its main business is the

laboratory testing of pre-production samples of consumer

products to client-specified standards. BVCPS' primary

laboratory is in New York, but it has a second laboratory in

Massachusetts.

BVCPS filed a Motion to Dismiss (# 6) pursuant to Federal

Rule of Civil Procedure 12(b)(2), a Brief in Support (# 7), and

an Affidavit in Support (# 9) on July 7, 2014. On September

10, 2014, Plaintiff filed a Response to Motion to Dismiss (#

26) and Memorandum in Opposition to Motion to Dismiss (#

27), with attached exhibits. On September 17, 2014, BVCPS

filed a Motion for Leave to Reply to Plaintiff's Opposition

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to Motion to Dismiss (# 28) and Brief in Support (# 29),

followed by a Reply in Further Support of Motion to Dismiss

(# 30) on September 29, 2014. Plaintiff then filed a Motion

for Leave to File Surresponse (# 31) on October 8, 2014, and

a Surresponse to Motion to Dismiss (# 33) on October 31,

2014. An evidentiary hearing has not been held. Instead, both

parties have submitted affidavits supporting their positions.

BVCPS' Contacts with Illinois

*2 BVCPS has numerous contacts with Illinois. In

determining BVCPS' contacts, this court will accept as true

BVCPS' uncontested assertions relating to those contacts and

draw all inferences in Plaintiff's favor if BVCPS contests

relevant facts. N. Grain Mktg., 743 F.3d at 491 (citations

omitted); Cent. States, 440 F.3d at 878; Crawley, 2006 WL

2331143, at *1 (citations omitted).

BVCPS has the following contacts with Illinois:

1. BVCPS tests products manufactured in Illinois. The

torch, however, was not manufactured in Illinois.

2. BVCPS maintains a registered agent in Illinois for the

service of process.

3. BVCPS inspects products in Illinois. In 2013, BVCPS

conducted 0.98% of all the inspections it performed

in Illinois. During the first seven months of 2014, it

conducted 0.39% of all of the inspections it performed

in Illinois.

4. BVCPS performs factory assessments in Illinois. In

2013, BVCPS performed 1.41% of all the assessments

it conducted in Illinois. During the first seven months

of 2014, it performed 3.33% of all of the assessments it

conducted in Illinois.

5. BVCPS filed Form BCA 13.15—an application to

transact business in Illinois—with the Illinois Secretary

of State, although it could have filed Form BCA 4.25,

which specifically states that a foreign corporation is

“not transacting business in the State of Illinois at this

time.”

6. BVCPS employs several Illinois residents. As of the first

quarter of 2013, BVCPS had three Illinois employees

who were collectively paid approximately $423,000.

The three employees were an account manager who left

BVCPS for another job in July 2013, BVCPS' president

and director who has been stationed overseas for more

than five years, and an information systems technician

who does not interact with BVCPS' clients. As of the first

quarter of 2014, BVCPS had two employees in Illinois

who were collectively paid approximately $343,000.

The decrease in employees and gross payroll expenses

is the result of the account manager leaving for other

employment.

7. In the process of pursuing new clients, BVCPS solicits

business in Illinois. Illinois clients generated 5.2% of

BVCPS' total revenue in 2013 and 4.1% of BVCPS' total

revenue for the first five months of 2014.

8. Big Lots has designated BVCPS as its testing provider

and imposes on it estimated testing turnaround times.

9. The Massachusetts Secretary of the Commonwealth has

on file a UCC Form 1 stating that a secured party claims

a security interest in imaging equipment used by BVCPS

in Downers Grove, Illinois.

10. BVCPS is identified as doing business on several

public websites that are accessible in Illinois. On one

website, BVCPS has a brochure containing a world map

identifying an office in Chicago, Illinois.

11. While Plaintiff claims, Big Lots admits, and BVCPS

denies it, this court will assume that BVCPS tested the

type of torch in question.

ANALYSIS

BVCPS' argues that it should be dismissed from the case

because this court lacks personal jurisdiction over it. Plaintiff

disagrees.

I. STANDARD

Motion to Dismiss

A motion to dismiss under Rule 12(b)(2) of the Federal Rules

of Civil Procedure challenges whether it is consistent with

due process for a court to assert personal jurisdiction over

a defendant. See Fed.R.Civ.P. 12(b)(2). A complaint does

not need to include facts demonstrating personal jurisdiction;

however, when a defendant challenges personal jurisdiction,

the plaintiff bears the burden of proving that it exists. Purdue

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Research Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773,

782 (7th Cir.2003) (citations omitted). Where, as here, a

determination of jurisdiction is based on the submission

of written materials instead of an evidentiary hearing, a

plaintiff “need only make out a prima facie case of personal

jurisdiction.” Id. (citations and internal quotation marks

omitted); see also N. Grain Mktg., LLC v. Greving, 743 F.3d

487, 491 (7th Cir.2014). In determining whether the plaintiff

has satisfied this standard, a court must resolve all relevant

factual disputes in the plaintiff's favor and “read the complaint

liberally, in its entirety, and with every inference drawn in

favor” of the plaintiff. N. Grain Mktg., 743 F.3d at 491

(citations omitted); Cent. States, Se. and Sw. Areas Pension

Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d 870,

878 (7th Cir.2006) (citations and internal quotation marks

omitted). A court may, however, “accept as true those facts

presented in defendant's affidavit that remain uncontested.”

Crawley v. Mariott Hotels, Inc., No. 05–CV–05805, 2006 WL

2331143, at *1 (N.D.Ill. Aug. 10, 2006) (citing Purdue, 338

F.3d at 783; RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272,

1275 (7th Cir.1997)).

Personal Jurisdiction

*3 In a diversity-jurisdiction case such as this, a court will

have personal jurisdiction over a defendant if the plaintiff files

a waiver of service or serves summons on a defendant and

“the defendant is subject to the jurisdiction of a court ... in

the state where the district court is located—here, Illinois.”

N. Grain Mktg., 743 F.3d at 491 (citing Fed.R.Civ.P. 4(k)(1)

(A)). In this case, service is not at issue. However, BVCPS

claims that it would not be subject to the jurisdiction of Illinois

courts.

In order to determine whether BVCPS would be subject to

the jurisdiction of Illinois courts, this court must first turn

to Illinois' long-arm statute. The Illinois long-arm statute

permits its courts to exercise jurisdiction for any reason

permitted by the Illinois and United States Constitutions.

735 Ill. Comp. Stat. 5/2–209 (a)(2), (b)(4), (c) (West 2014).

Because of this, the due process requirements and the

Illinois long-arm statute are coextensive. Madison Miracle

Prods., LLC v. MGM Distribution Co., 978 N.E.2d 654, 668

(Ill.App.Ct.2012). Therefore, Illinois' long-arm statute will be

satisfied when due process concerns are satisfied. Id.

The Illinois and Federal Constitutions' due process guarantees

“are not necessarily coextensive.” KM Enters., Inc. v.

Global Traffic Techs., Inc., 725 F.3d 718, 732 (7th

Cir.2013). To the extent that the tests diverge, “the Illinois

constitutional standard is likely more restrictive than its

federal counterpart.” Id. Consequently, if a defendant is

not subject to personal jurisdiction under the federal

constitutional standard, a court “need not worry whether

jurisdiction is also proper under the Illinois Constitution.”

Id. Accordingly, this court will base its determination of

jurisdiction on whether exercising personal jurisdiction over

BVCPS comports with federal due process requirements.2

Under the federal due process requirements, personal

jurisdiction may be exercised if the court has either general

or specific personal jurisdiction. Id. General jurisdiction

requires that a defendant's contacts with a forum state be

sufficiently “ ‘continuous and systematic’ as to render [them]

essentially at home in the forum State.” Goodyear Dunlop

Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011)

(citations omitted); N. Grain Mktg., 743 F.3d at 492 (citations

omitted); see also Daimler AG v. Bauman, 134 S.Ct. 746, 751

(2014). “Specific jurisdiction requires that the plaintiff's cause

of action relate [directly] to the defendant's contact with the

forum.” KM Enters., 725 F.3d at 732–33 (citations omitted);

see also N. Grain Mktg., 743 F.3d at 492 (citations omitted).

*4 In order for this court to have personal jurisdiction

over BVCPS, it must conclude that either specific or general

jurisdiction exists. Such jurisdiction must be “determined as

of the date of the filing of the suit.” Wild v. Subscription Plus,

Inc., 292 F.3d 526, 528 (7th Cir.2002); see Cent. States, 440

F.3d at 877.

III. SPECIFIC JURISDICTION

Plaintiff asserts that this court has specific jurisdiction over

BVCPS because BVCPS committed a tortious act within

Illinois, since the state in which Plaintiff's injury occurred

is the state in which the tort occurred. BVCPS, however,

maintains that this court lacks specific jurisdiction because

Plaintiff's claims against BVCPS do not arise from BVCPS'

contacts with Illinois and the Seventh Circuit has abrogated

the line of cases upon which Plaintiff relies. This court agrees

with BVCPS.

In determining whether there are sufficient minimum contacts

to create specific jurisdiction, courts “focus[ ] on ‘the

relationship among the defendant, the forum, and the

litigation.’ ” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014)

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(quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770,

775 (1984)). “Specific jurisdiction requires that the plaintiff's

cause of action relate [directly] to the defendant's contact

with the forum.” KM Enters., 725 F.3d at 732–33 (citations

omitted); see also N. Grain Mktg., 743 F.3d at 492 (citations

omitted). Such jurisdiction exists if: “(1) the defendant has

purposefully directed his activities at the forum state or

purposefully availed himself of the privilege of conducting

business in that state, and (2) the alleged injury arises out

of the defendant's forum-related activities.” N. Grain Mktg.,

743 F.3d at 492 (quoting Tamburo, 601 F.3d at 702) (internal

quotation marks omitted). Nonetheless, a court's exercise of

specific jurisdiction cannot violate “traditional notions of fair

play and substantial justice.” Id. (citing Tamburo, 601 F.3d

at 702). That is, the minimum contacts must “make personal

jurisdiction reasonable and fair under the circumstances.”

RAR, 107 F.3d at 1277.

A. BVCPS Has No Claims–Related Contacts With Illinois.

While BVCPS maintains multiple contacts with Illinois,

none of those contacts are related to Plaintiff's claims. A

defendant's contacts with a forum state are not all relevant to

determining whether a plaintiff's claims relate to or arise out

of a defendant's contacts; only those contacts that “bear on the

substantive legal dispute between the parties or relate to the

operative facts of the case” are relevant. GCIU–Emp'r Ret.

Fund v. Goldfarb Corp., 565 F.3d 1018, 1024 (7th Cir.2009);

see also uBid, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 429

(7th Cir.2010); RAR, 107 F.3d at 1277–78. Thus, the plaintiff's

cause of action “must directly arise out of the specific contacts

between the defendant and the forum state.” GCIU, 565 F.3d

at 1024 (emphasis in original) (citation and internal quotation

marks omitted).

Despite the laundry list of contacts that BVCPS maintains

with Illinois, no contact is relevant to Plaintiff's claims.

Plaintiff admits that BVCPS had no involvement in the

labeling, marketing, distribution, sale, and resale of any torch.

Therefore, BVCPS' alleged tortious actions would be in its

testing of the torch and its communications of the results with

its co-defendants, making only those contacts associated with

those actions relevant.

*5 First, BVCPS' assertion that no communications over

any testing on the torch occurred in Illinois is uncontroverted

and must therefore be taken as true. As for the testing,

Plaintiff's claim that BVCPS tested the type of torch in

question must be taken as true. However, that does not create

a contact with Illinois because, as Plaintiff concedes, that

testing occurred outside of the United States prior to any

torch's importation. And BVCPS' assertions that it never

tested the particular torch injuring Plaintiff and that none

of BVCPS' employees residing in Illinois were involved in

any testing are uncontroverted and must be taken as true.

Accordingly, no claims-related conduct connects BVCPS to

Illinois.

B. BVCPS Has Not Purposefully Directed Its Activities At

or Purposefully Availed Itself of the Privilege of Conducting

Business in Illinois.

Even if, in testing the torch, BVCPS had contacts with

Illinois, BVCPS did not purposefully direct its suit-related

conduct to Illinois or purposefully avail itself of the privilege

of conducting business in Illinois. Due process requires

that a “defendant's suit-related conduct” create a sufficiently

“substantial connection with the forum State” that it is

“reasonable for the defendant to anticipate that he could

be haled into court there.” Walden, 134 S.Ct. at 1121; N.

Grain Mktg., 743 F.3d at 492 (citing Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 474 (1985)). For there to

be a “substantial connection,” the relationship between the

defendant and the forum State “must arise out of contacts

that the defendant himself creates.” Walden, 134 S.Ct. at 1122

(emphasis in original) (quoting Burger King, 471 U.S. at 475)

(internal quotation marks omitted). Accordingly, contacts

between a forum state and a third party or plaintiff—no matter

how significant—cannot satisfy minimum contacts. Walden,

134 S.Ct. at 1122 (quoting Rush v. Savchuk, 444 U.S. 320,

332 (1980)); see Helicopteros Nacionales de Columbia, S.A.

v. Hall, 466 U.S. 408, 417 (1984); World–Wide Volkswagen

Corp., 444 U.S. 286, 298 (1980); Hanson v. Denckla, 357 U.S.

235, 253–54 (1958).

Moreover, “ ‘foreseeability’ alone has never been a sufficient

benchmark for personal jurisdiction under the Due Process

Clause.” World–Wide Volkswagen, 444 U.S. at 295. In

products liability cases, “it is the defendant's purposeful

availment that makes jurisdiction consistent with ‘traditional

notions of fair play and substantial justice,’ ” and, “as a

general rule, it is not enough that the defendant might have

predicted that its goods will reach the forum State.” J.

McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780, 2787–88

(2011). When, as in World Wide Volkswagen, products end up

in a state due to “the ‘unilateral activity’ of a third party, rather

than the defendant's distribution scheme,” the scenario will

doom the plaintiff's case. Jennings v. AC Hydraulic A/S, 383

F.3d 546, 551 (7th Cir.2004) (citations omitted).

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Here, BVCPS did not test the torches in Illinois. And BVCPS

had no control over where, or even if, the torches would be

distributed or sold because it was not involved in the torch's

labeling, marketing, distribution, sale, or resale. Rather, the

torch in question was in Illinois because Designco and Big

Lots distributed it to Illinois and Big Lots sold it there.

Consequently, the torches' presence in Illinois was entirely

the result of the unilateral actions of third parties. And, even

if BVCPS knew that the torches would be distributed and

sold, it would be difficult for it to foresee that the torches

would end up in Illinois, as opposed to any other state or even

another nation, because Designco is a large, foreign export

company and Big Lots is a multinational corporation with

stores nationwide. Further, there is no indication that BVCPS

tested the torches to meet any Illinois-specific standards. In

any event, foreseeability was foreclosed because BVCPS did

not know that the torches would even be sold or distributed.

Accordingly, BVCPS did not purposefully direct its suitrelated conduct to Illinois or purposefully avail itself of the

privilege of conducting business in Illinois.

C. Plaintiff's Injury in Illinois Cannot Confer Jurisdiction.

*6 This court is also not persuaded by Plaintiff's claim that

it has jurisdiction over BVCPS because BVCPS performed

a tortious act or omission that injured Plaintiff in Illinois.

Specific jurisdiction's guiding principles apply even in the

case of a tortfeasor. Walden, 134 S.Ct. at 1123; Wallace, 778

F.2d at 395; Kellogg Brown, 2014 WL 4948136, at *5 (citing

Medallion Prods., 2007 WL 3085913, at *6) (“The effects of

an alleged tort are part of, not a substitute for, the analysis

of a defendant's minimum contacts with the forum.”). As

the Supreme Court unanimously held in Walden v. Fiore, the

basis for jurisdiction is a defendant's intentional conduct that

creates requisite contacts with the forum state. 134 S.Ct. at

1123 (citations omitted). “The proper question is not where

the plaintiff experienced a particular injury or effect but

whether the defendant's conduct connects him to the forum

in a meaningful way.” Id. at 1125. And, when the Seventh

Circuit addressed the question of “whether harming a plaintiff

in the forum state creates sufficient minimum contacts,” the

court held that “after Walden there can be no doubt that

‘the plaintiff cannot be the only link between the defendant

and the forum.’ ” Advanced Tactical Ordnance Sys., LLC v.

Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir.2014)

(citations omitted). In other words, “[e]xperiencing the effects

of an injury in a forum on its own is insufficient under a tort

theory absent ‘something more directed at that [jurisdiction].’

” Kellogg Brown, 2014 WL 4948136, at *5 (citing Tamburo,

601 F.3d at 706).

As the Supreme Court and Seventh Circuit have made

clear, then, regardless of whether Plaintiff was harmed in

Illinois, Plaintiff cannot be the sole link between BVCPS

and Illinois. See Walden, 134 S.Ct. at 1123; Advanced

Tactical, 751 F.3d at 802. Therefore, Plaintiff cannot rely

upon prior cases holding that courts in a state where a

tort and injury occur have jurisdiction over tortfeasors. See,

e.g., Janmark, Inc. v. Reidy, 132 F.3d 1200 (7th Cir.1997);

Russell v. SNFA, 965 N.E.2d 1 (Ill.App.Ct.2011), aff'd, 987

N.E.2d 778 (Ill.2013). As an Illinois state appellate court

has recognized, such arguments are “completely without

merit” given both Walden and the abrogation of Janmark

recognized by Advanced Tactical Stoller v. Herbert, No.

1–12–2876, 2014 WL 3953933, at*3 (Ill.App.Ct. Aug. 13,

2014) (unpublished). It is therefore unsurprising that Plaintiff

eventually concedes that her residence, standing alone, does

not confer jurisdiction. Since BVCPS has no claims-related

contacts with Illinois, Plaintiff's residence stands alone and is

an insufficient basis to confer specific jurisdiction upon this

court.

Because no special rule applies when torts are involved,

BVCPS never purposefully directed claims-related activities

at Illinois nor purposefully availed itself of the privilege of

conducting business in Illinois, and no claims-related conduct

connects BVCPS to Illinois, this court cannot exercise

specific personal jurisdiction over BVCPS.

IV. GENERAL JURISDICTION

Plaintiff also argues that this court has general jurisdiction

over BVCPS because, as can be seen by BVCPS' contacts

with Illinois, BVCPS is doing business in a continuous and

systematic fashion in Illinois. BVCPS, however, argues that it

does not have sufficient contacts to allow this court to exercise

general jurisdiction because it: (1) is headquartered in New

York and incorporated in Massachusetts; (2) has no current

office in Illinois and at most maintained a single employee

at another company's office long before the Plaintiff filed

suit; (3) has no real property in Illinois; (4) only employs

two Illinois residents: one is stationed overseas; the other

never interacts with clients; (5) maintains a website primarily

for information purposes; (6) does not advertise its services

specifically in Illinois; and (7) conducts only a limited amount

of business in Illinois. This court agrees with BVCPS.

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The general jurisdiction threshold is “high” and “

‘considerably more stringent’ than that required for specific

jurisdiction.” Abelesz v. OTP Bank, 692 F.3d 638, 654 (7th

Cir.2012) (quoting Purdue, 338 F.3d at 787); Tamburo, 601

F.3d at 701. Defendants are subject to general jurisdiction—

and can therefore be haled into court for any action, even

one unrelated to a defendant's contacts with a forum state—

if their contacts with a state are sufficiently “ ‘continuous

and systematic’ as to render [them] essentially at home in

the forum State.” Goodyear, 131 S.Ct. at 2851 (citations

omitted); N. Grain Mktg., 743 F.3d at 492 (citations omitted);

see also Daimler, 134 S.Ct. at 751. This inquiry is not

analogous to determining whether a defendant's “in-forum

contacts can be said to be in some sense ‘continuous and

systematic.’ ” Daimler, 134 S.Ct. at 761 (emphasis added)

(citations omitted). While a business is deemed at home in its

place of incorporation and principal place of business, beyond

these locations, “contacts must be sufficiently extensive

and pervasive to approximate physical presence.” Abelesz,

692 F.3d at 654 (citing Goodyear, 131 S.Ct. at 2853–54);

Tamburo, 601 F.3d at 701 (citations omitted). However,

even physical presence may not be sufficient to exercise

personal jurisdiction over corporations because “the general

jurisdiction inquiry does not focus solely on the magnitude

of the defendant's in-state contacts.” Daimler, 134 S.Ct. at

762 & n.20. Rather, a court must assess a corporation's entire

activities—nationwide and worldwide—and cannot deem a

corporation to be “at home” in every place they operate. Id. To

be sure, mere “isolated or sporadic contacts” or maintaining

a public website certainly cannot, without more, establish

general jurisdiction. Tamburo, 601 F.3d at 701 (citations

omitted).

*7 Although BVCPS' contacts with Illinois are fairly

extensive and deliberate, they do not satisfy the general

jurisdiction standard because this court must assess the

entirety of BVCPS' activities—not just the magnitude of its

contacts with Illinois—in determining general jurisdiction.

In Daimler AG v. Bauman, 134 S.Ct. at 760–762, the

U.S. Supreme Court unanimously held that a company

that was not incorporated in a state and did not have its

principal place of business there was not subject to general

jurisdiction, even were it to impute to the corporation its

subsidiary's extensive contacts with the state. These contacts

included having multiple facilities throughout the state,

“continuous[ly] interacti[ng] with customers throughout” the

state, and “direct[ly] distribut[ing] ... thousands of products

accounting for billions of dollars in sales.” Id. at 752; id.

at 764 (Sotomayor, J., concurring). Like the corporation in

Daimler, BVCPS is neither incorporated in the forum state

nor has its principal place of business there. And compared to

the contacts of the corporation in Daimler, BVCPS' contacts

with Illinois are slim.

First, BVCPS has well over 100 offices and laboratories

throughout the world, but it has no physical presence or office

in Illinois. BVCPS does not own any real property in Illinois.

While its online brochure contains a world map identifying an

office in Chicago, Illinois, BVCPS states that it actually has

no office there. Plaintiff does not contravene this assertion.

And, while BVCPS' webpage listed a consulting office for

BVCPS in Lisle, Illinois, when Plaintiff filed suit, the office

actually belonged to an affiliated company and BVCPS' tie to

that office—a sole employee—had long left its employ. But,

even if this office were imputed to it, BVCPS would have less

than one percent of its physical facilities located in Illinois.

Second, BVCPS has only an agent for the service of

process in Illinois and two Illinois residents in its employ.

BVCPS' maintenance of an agent for the service of process

“does not rise to the level of ‘continuous and systematic’

contacts needed for the court to exercise general jurisdiction.”

Rawlins, 2014 WL 1657182, at *5; see also Crochet v. Walmart Stores, Inc., Civ. No. 6:11–01404, 2012 WL 489204, at

*4 (W.D.La. Feb. 13, 2012); Davis v. Quality Carriers, Inc.,

Nos. 08–4533(SRC), 08–6262(SRC), 2009 WL 3335860, at

*3 (D.N.J. Oct. 15, 2009); Hodges v. Deltic Farm & Timber

Co., Inc., Civ. A. No. 90–3998, 1991 WL 42577, at *2

(E.D.La. Mar. 28, 1991); Palmer v. Kawaguchi Iron Works,

Ltd., 644 F.Supp. 327, 331 (N.D.Ill.1986). As for BVCPS'

employees, BVCPS only had one employee stationed in

Illinois and one Illinois resident stationed overseas at the time

of this lawsuit's filing. Even though one employee was the

corporation's president and director, he had been stationed

overseas for more than five years. The other employee is

an information systems technician who has no contact with

customers. And “the presence of a service representative”

cannot “ordinarily confer jurisdiction over the corporation as

to matters unrelated to those activities.” Palmer, 644 F.Supp.

at 331. Further, as a matter of fundamental fairness, BVCPS

could not reasonably expect that, by employing one Illinois

resident as a technician, it was exposing itself to defending in

Illinois any claim from any party who filed suit in the State.

Moreover, because BVCPS has over 100 facilities worldwide

that must be staffed by employees, two Illinois employees

constitute a small percentage of BVCPS' total employees.

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Third, while BVCPS does conduct business in Illinois, it

transacts only a small percentage of its overall business in

the State. It is true that BVCPS filed form BCA 13.15 so

that it could transact business in Illinois, solicits business

in Illinois, owns imaging equipment in Downers Grove,

Illinois, tests products manufactured in Illinois, and inspects

products and performs factory assessments in Illinois. But,

as the Supreme Court cautioned in Daimler, “[n]othing in

International Shoe and its progeny suggests that a particular

quantum of local activity should give a State authority over

a far larger quantum of ... activity having no connection to

any in-state activity.” Daimler, 134 S.Ct. at 762 n.20 (citations

and internal quotation marks omitted). And the Seventh

Circuit held that, even when a company had “hundreds

of thousands” of Illinois customers that “delivered many

millions of dollars in revenue” to the company, the company

did not have sufficient contacts with Illinois to satisfy the

“demanding” general jurisdiction standard. uBid, 623 F.3d at

424, 426. Here, BVCPS conducted a small quantum of its

overall activities in Illinois. During the first seven months

of 2014, BVCPS conducted 0.39% of all of the inspections

it performed and 3.33% of all of the factory assessments it

performed in Illinois. And Illinois clients generated just 4.1%

of BVCPS' total revenue for the first five months of 2014.

Therefore, BVCPS' activities appear to be even less than those

found insufficient in uBid, and BVCPS conducts a far larger

quantum of activities outside of Illinois than inside it.

*8 Finally, while BVCPS is identified as doing business on

several public websites that are accessible in Illinois, as well

as worldwide, these websites primarily provide information

about the company. The Seventh Circuit has consistently held

that “the maintenance of a public Internet website” is not

“sufficient, without more, to establish general jurisdiction.”

Tamburo, 601 F.3d at 701. And “limited contacts ... through

the Internet do not make defendants essentially at home

in the state and subject to general personal jurisdiction.”

Snodgrass v. Berklee Coll. of Music, 559 Fed.Appx. 541,

542 (7th Cir.2014). As a result, courts could not exercise

general jurisdiction over a “web-based company which

earned millions of dollars annually from Illinois customers

and deliberately and successfully exploited [the] Illinois

market” and a “company which utilized multiple interactive

websites to market cigarettes that were sold and shipped to

Illinois customers.” Snodgrass, 559 Fed.Appx. at 543 (citing

uBid, 623 F.3d at 426–29; Illinois v. Hemi Group LLC, 622

F.3d 754, 757–59 (7th Cir.2010)). Unlike those websites, the

websites in question here are primarily designed to provide

information about BVCPS' services and do not specifically

target Illinois. As a matter of fact, BVCPS does not advertise

its services specifically in Illinois through its website, or any

other medium. Accordingly, BVCPS utilized its website as

a means of doing business in Illinois to a lesser degree than

the companies in both uBid and Hemi Group. Just as in those

cases, then, BVCPS' website does not make it essentially at

home in Illinois.

Ultimately, despite BVCPS' having significant contacts with

Illinois as of the date of the filing of this suit, these contacts

cannot satisfy the high general jurisdiction standard because

this court must assess the entirety of BVCPS' activities—

not just the magnitude of its contacts with Illinois. BVCPS

conducts business worldwide and has well over 100 offices

and laboratories worldwide. It has no physical presence or

office in Illinois. It has only one agent for the service of

process in Illinois and two Illinois residents in its employ:

one has no contact with customers; the other has been

stationed overseas for years. It acquired less than 5% of its

total revenues from Illinois clients. And the public websites

identifying BVCPS as doing business in Illinois are primarily

designed to provide information about the company and do

not specifically target Illinois. Accordingly, BVCPS activities

in Illinois, when viewed in light of its out-of-forum activities,

are not sufficiently systematic and continuous as to render it

at home in Illinois, which precludes this court from exercising

general personal jurisdiction.

Moreover, because no special rule applies when torts are

involved, BVCPS never purposefully directed claims-related

activities at Illinois nor purposefully availed itself of the

privilege of conducting business in Illinois, and no claimsrelated conduct connects BVCPS to Illinois, this court cannot

exercise specific personal jurisdiction over BVCPS.

Consequently, this court lacks personal jurisdiction over

BVCPS, and BVCPS must be dismissed from this action.

IT IS THEREFORE ORDERED THAT:

(1) BVCPS' Motion to Dismiss Plaintiff's Amended

Complaint (# 6) is GRANTED.

(2) BVCPS is terminated as a party in this action.

(3) This case is referred to Magistrate Judge David G.

Bernthal for further proceedings.

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All Citations

Not Reported in Fed. Supp., 2014 WL 6888446

Footnotes

1 Plaintiff filed an amended complaint (# 3) on May 22, 2014.

2 Plaintiff's jurisdictional arguments are based on BVCPS committing a tortious act in Illinois and “doing business” within

the State: either action would bring BVCPS under Illinois courts' jurisdiction under 735 Ill. Comp. Stat. 5/2209 (a)(2),

(b)(4). However, “[t]he effects of an alleged tort are part of, not a substitute for, the analysis of a defendant's minimum

contacts with the forum.” United States v. Kellogg Brown & Root Servs., Inc., No. 4:12–CV–4110–SLD–JAG, 2014 WL

4948136, at *5 (C.D.Ill. Sept. 30, 2014) (citing Medallion Prods., Inc. v. H.C.T.V., Inc., No. 06–C–2597, 2007 WL 3085913,

at *6 (N.D.Ill. Oct. 18, 2007); see also Wallace v. Herron, 778 F.2d 391, 395 (7th Cir.1985). And the long-arm statute's

“doing business” standard is “virtually identical to the federal requirement for general personal jurisdiction that a party

maintain continuous and systematic business contacts with the forum.” Cent. States, Se. and Sw. Areas Pension Fund v.

Phencorp Reinsurance Co., Inc., 530 F.Supp.2d 1008, 1016 (N.D.Ill.2008). Therefore, Plaintiffs arguments are adequately

addressed by this court's analysis of whether exercising general or specific personal jurisdiction over BVCPS would

comport with federal due process requirements.

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

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