IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

INCIPIO, LLC, 

 Plaintiff, 

 v. 

UNDER ARMOUR, INC., 

 

 Defendant. 

No. 20-cv-04800 

Judge John F. Kness 

MEMORANDUM OPINION AND ORDER 

This case presents the latest chapter in a multifaceted contract dispute arising 

out of a failed merchandise licensing agreement. Plaintiff Incipio, LLC and Defendant 

Under Armour, Inc. entered into a licensing agreement under which Incipio was to 

sell mobile phone cases bearing Under Armour’s name and marks. Incipio maintains 

that, when the licensing agreement fell apart, the parties agreed to a resolution of 

the dispute. When that second agreement again fell apart, Incipio says, Under 

Armour then made a new promise to abide by the earlier agreement. But Incipio 

alleges that Under Armour breached that promise as well by pulling the rug out from 

under Incipio and unjustifiably walking away from the deal at the last minute. In 

this declaratory judgment action, Incipio seeks a declaration in its favor concerning 

these disputes, as well as a reformation of the initial settlement agreement, damages 

under a promissory estoppel theory, and injunctive relief against Under Armour. 

Under Armour now moves under Rule 12(b)(2) of the Federal Rules of Civil 

Procedure to dismiss the complaint based on a lack of personal jurisdiction. As 

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explained below, because the Court agrees that jurisdiction over Under Armour 

cannot be maintained consistent with principles of due process, Incipio’s complaint 

must be dismissed without prejudice for lack of specific personal jurisdiction over 

Under Armour. 

I. BACKGROUND 

Plaintiff Incipio, LLC is a Delaware limited liability company with its principal 

place of business in California. (Complaint (“Compl.”), Dkt. 1 ¶ 4.) Defendant Under 

Armour, Inc. is a Maryland corporation with its principal place of business in 

Maryland. (Id. ¶ 5.) This action, brought under the Court’s diversity jurisdiction, 

concerns a disputed settlement agreement into which the parties entered after an 

earlier licensing deal between the two entities soured. 

In May 2017, the parties entered into a License and Distribution Agreement 

that permitted Incipio to sell mobile phone cases bearing Under Armour’s proprietary 

trademarks and brand names. (Id. ¶ 10.) Incipio proved unable, however, to sustain 

the recurring royalty payments; this led the parties in June 2019 to sign a 

Termination Agreement ending the License and Distribution Agreement. (Id. ¶ 11.) 

As part of the Termination Agreement, Incipio consented to a confessed judgement of 

$30,900,000. (Id. ¶ 12.) 

Unfortunately, the dispute did not end there. Incipio, presumably due to 

business difficulties, failed to perform its obligations under the Termination 

Agreement. (Id. ¶ 15.) Apparently concluding that half a loaf is better than none, 

Under Armour agreed in March 2020 to sign a “Payment and Forbearance 

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Agreement” with Incipio. (Id. ¶ 16.) That still did not end the matter, as it appears 

that Incipio then defaulted on its obligations under the Forbearance Agreement. (Dkt. 

14, Def.’s Mem. at 3; Compl. ¶¶ 17, 18, 21.) This eventually led the parties to negotiate 

a final settlement of all related agreements, including the confessed judgement. 

(Compl. ¶ 21.) 

Incipio designated Neil Goulden, a restructuring advisor providing services 

from his home office in Oak Park, Illinois, to negotiate the settlement with Under 

Armour’s attorney, Robert Rich. (Dkt. 16-1, Goulden Aff. ¶¶ 1, 2, 10.) Goulden and 

Rich conducted their negotiations by email and telephone. (Id. ¶ 12.) 

The resulting Settlement Agreement included two conditions precedent: 

(1) Incipio, by wire transfer, was to pay Under Armour $210,000 on June 30, 2020; 

and (2) within 5 business days of that date, Incipio was to assign Under Armour a 

$2.5 million portion of the principal of a separate promissory note by issuing an 

amended and restated promissory note in Under Armour’s favor. (Compl. ¶ 20.) On 

June 30, 2020, the Settlement Agreement was electronically signed by Joe Sklencar 

(Incipio’s Chief Financial Officer) and Ady Maheswari (Under Armour’s Chief 

Accounting Officer). (Id. ¶ 19; Dkt. 5-2, Sklencar Aff. ¶ 2; Dkt. 16-1, Goulden Aff. ¶ 

7.) 

Incipio alleges that Rich confirmed to Goulden on June 30, 2020 that Under 

Armour would accept performance of the first condition precedent as timely if Incipio 

initiated the wire transfer on June 30, even though Under Armour would receive the 

payment on a later date. (Compl. ¶ 25.) Relying on Goulden’s representation, Incipio 

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initiated the wire transfer on June 30. (Id. ¶ 26.) Because the Federal Reserve 

banking system did not complete the payment on June 30, Under Armour received 

the payment on July 1. (Id. ¶ 30.) 

According to Incipio, on July 14, 2020, although Incipio stood “ready willing 

and able” to perform the second condition precedent by signing over the promissory 

note, Under Armour asserted that Incipio failed to satisfy the first condition 

precedent of the Settlement Agreement because Under Armour did not receive 

payment until July 1. (Id. ¶¶ 36-37.) Under Armour thus claimed that it was entitled 

to walk away from the Settlement Agreement. (Id. ¶ 37.) Accordingly, Under Armour 

refused to accept Incipio’s performance of the second condition precedent and 

returned the funds sent on June 30. (Id. ¶¶ 36-43.) This litigation followed. 

II. LEGAL STANDARD 

A plaintiff need not include facts alleging personal jurisdiction in her 

complaint; once personal jurisdiction is challenged, however, the plaintiff bears the 

burden of making a prima facie case for personal jurisdiction. Curry v. Revolution 

Lab’ys, LLC, 949 F.3d 385, 392 (7th Cir. 2020) (citing Purdue Rsch. Found. v. SanofiSynthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)). In determining whether a 

plaintiff has established personal jurisdiction over a defendant, the Court can 

consider affidavits submitted by the parties. Id. at 393; see also Purdue Rsch., 338 

F.3d at 782-83 (“once the defendant has submitted affidavits or other evidence in 

opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings 

and submit evidence supporting the exercise of jurisdiction”). A plaintiff facing a 

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challenge to personal jurisdiction is entitled to the resolution of disputes in her favor 

regarding relevant facts presented in the record. Curry, 949 F.3d at 393 (citing 

Purdue Rsch., 338 F.3d at 782). 

III. DISCUSSION 

A. The Law of Illinois Governing Personal Jurisdiction 

A district court sitting in diversity1 has personal jurisdiction over a 

nonresident defendant only if a state court in which it sits would have jurisdiction. 

Purdue Rsch., 338 F.3d at 779 (citing Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th 

Cir. 2002)). In Illinois, a “long-arm” statute provides that courts may exercise 

jurisdiction on any basis “now or hereafter permitted by the Illinois Constitution and 

the Constitution of the United States.” 735 ILCS 5/2-209(c). Because § 2-209(c) 

renders Illinois jurisdictional limits coterminous with the United States 

Constitution’s due process limits on personal jurisdiction, the Court must determine 

whether the exercise of personal jurisdiction over Under Armour complies with 

federal due process principles.2 See Curry, 949 F.3d at 393 (“The Illinois long-arm 

1 Diversity jurisdiction exists because the parties are residents of the different states and 

more than $75,000 is in controversy. 28 U.S.C. § 1332. This Court must apply Illinois law 

because federal courts sitting in diversity apply the substantive law of the state in which they 

sit, as determined by their forum state’s choice-of-law rules. Fednav Int’l Ltd. v. Cont’l Ins. 

Co., 624 F.3d 834, 838 (7th Cir. 2010). 

2 The parties debate which Illinois jurisdictional provision to apply. Incipio focuses on 735 

ILCS 5/2-209(a)(7), which provides Illinois courts with jurisdiction over disputes arising from 

“the making or performance of any contract or promise substantially connected with” Illinois. 

Subsection 2-209(c) is, however, broader than and encompassing of § 2-209(a)(7). See Viktron, 

L.P. v. Program Data, Inc., 759 N.E.2d 186, 195-96 (Ill. App. Ct. 2001) (finding § 2-209(c) as 

an alternate basis for jurisdiction of a contract action after analysis of § 2-209(a)(7) supported 

jurisdiction). Accordingly, the Court focuses its analysis on § 2-209(c). 

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statute permits the exercise of jurisdiction to the full extent permitted by the 

Fourteenth Amendment’s Due Process Clause”) (quoting Tamburo v. Dworkin, 601 

F.3d 693, 700 (7th Cir. 2010)); Sungard Data Sys., Inc. v. Cent. Parking Corp., 214 F. 

Supp. 2d 879, 882 (N.D. Ill. 2002) (“Illinois courts have given little guidance on how 

Illinois due process varies from federal concerns”) (citing RAR, Inc. v. Turner Diesel, 

Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997)); Russell v. SNFA, 987 N.E.2d 778, 785 (Ill. 

2013) (“there have been no decisions from this court . . . identifying any substantive 

difference between Illinois due process and federal due process on the issue of a 

court’s exercising personal jurisdiction over a nonresident defendant”). 

Under established principles of due process, for a court to possess personal 

jurisdiction, the defendant must have “minimum contacts” with the forum state “such 

that the maintenance of the suit does not offend ‘traditional notions of fair play and 

substantial justice.’ ” Curry, 949 F.3d at 395 (quoting Int’l Shoe Co. v. Washington, 

326 U.S. 310, 316 (1945)).3 A defendant is said to have established “minimum 

contacts” when the defendant has “purposefully avail[ed]” itself of the laws of the 

forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985); Purdue 

Rsch., 338 F.3d at 780 (“In undertaking this analysis, the most helpful case is Burger 

King Corp. v. Rudzewicz . . . because, in the context of the adjudication of contractual 

3 Incipio concedes that this Court does not have general jurisdiction over Under Armour. 

(Dkt. 16, Pl.’s Resp. at 12.) As a result, the Court considers only whether it has specific 

jurisdiction over Under Armour. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 

915, 919 (2011) (“In contrast to general, all-purpose jurisdiction, specific jurisdiction is 

confined to adjudication of issues deriving from, or connected with, the very controversy that 

establishes jurisdiction”) (cleaned up). 

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rights, it deals with the requisite minimum contacts necessary to hold a nonresident 

defendant amenable to the jurisdiction of a state court”). 

Foresight can reasonably be considered the companion of purposeful action; 

foreseeability is thus “critical” to due process analysis. This is so because the 

defendant’s conduct with the forum state must be such that the defendant could 

“reasonably anticipate being haled into court there.” Burger King, 471 U.S. at 474 

(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)) 

(cleaned up). As a result, the “unilateral activity of those who claim some relationship 

with a nonresident defendant cannot satisfy the requirement of contact with the 

forum State.” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)); see also 

Walden v. Fiore, 571 U.S. 277, 284 (2014) (“We have consistently rejected attempts to 

satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts 

between the plaintiff (or third parties) and the forum State”). In addition, contacts 

with the forum state that are “random, fortuitous, or attenuated” will not support a 

finding of jurisdiction. Burger King, 471 U.S. at 475 (cleaned up). 

When determining whether a party to a contract should reasonably anticipate 

being haled into a particular forum on a breach of contract action, courts look to four 

factors: “ ‘who initiated the transaction, where the negotiations were conducted, 

where the parties executed the contract, and where the defendant would have 

performed the contract.’ ” Corus Int’l Trading Ltd. v. Eregli Demir ve Celik 

Fabrikalari, T.A.S., 765 F. Supp. 2d 1079, 1085 (N.D. Ill. 2011) (quoting Corus Am., 

Inc. v. Int’l Safety Access Corp., No. 09-cv-01422, 2009 WL 5183834, at *3 (N.D. Ill. 

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2009) (“The existence of a contract between an out-of-state defendant and an Illinois 

plaintiff is insufficient, by itself, to justify personal jurisdiction”)) (cleaned up). 

A relevant choice of law provision should also be considered. See Sungard Data Sys., 

Inc., 214 F. Supp. 2d at 882 (citing Burger King, 471 U.S. at 482); Bolger v. Nautica 

Int’l, Inc., 861 N.E.2d 666, 671 (Ill. App. Ct. 2007) (“a choice of law provision, although 

not by itself a sufficient basis to determine jurisdiction, is relevant”) (cleaned up). 

B. Under Armour Did Not Purposefully Avail Itself of Illinois Law 

In deciding whether specific personal jurisdiction exists over this contract 

action, the Court is bound, of course, to consider (1) who initiated the transaction; 

(2) where negotiations occurred; (3) where the contract was executed; and (4) where 

Under Armour was to perform under the contract. Corus Int’l Trading, 765 F. Supp. 

2d at 1085. Considering at the outset the first and third factors, as well as whether 

there is a relevant choice of law provision, Incipio does not address who initiated 

either the Settlement Agreement or the previous License and Distribution 

Agreement. Nor does Incipio establish where the Settlement Agreement was 

executed. Neither Incipio nor Under Armour resides or has its principal place of 

business in Illinois; Under Armour therefore cannot be viewed as “affiliating” itself 

“with an enterprise based primarily in” Illinois. See Burger King, 471 U.S. at 480. 

These facts, taken together and when viewed in the light of the governing Illinois 

test, do not support a finding of specific personal jurisdiction. And as a side note—but 

an important one—the Settlement Agreement contains a choice of law provision 

opting for New York law; that fact also cuts against jurisdiction in Illinois. 

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As to the second factor of the Illinois test—where negotiations took place—

Incipio highlights that Robert Rich (Under Armour’s counsel) negotiated the 

Settlement Agreement with Neil Goulden (Incipio’s restructuring representative) 

while Goulden was present in Oak Park, Illinois (a village within this District). (Dkt. 

16, Pl.’s Resp. at 12-13.) Incipio contents that this fact supports specific jurisdiction. 

(Id.) Incipio also finds it significant that Rich promised to Goulden that Under 

Armour would accept Incipio’s late payment. (Id.) 

Incipio’s reliance on Goulden’s presence in Illinois is misplaced. As Incipio 

would have it, Goulden’s presence in Illinois means Under Armour negotiated the 

contract in Illinois. (Dkt. 16, Pl.’s Resp. at 12-13.) In support, Incipio cites an Illinois 

decision in which the Appellate Court of Illinois found personal jurisdiction based on 

contract negotiations that occurred in Illinois. See Viktron, L.P. v. Program Data, Inc., 

759 N.E.2d 186, 194 (Ill. App. Ct. 2001). But Viktron does not control here, for the 

simple but distinguishing fact that Under Armour, unlike the defendant in Viktron, 

did not physically enter Illinois to negotiate the Settlement Agreement. 

In the alternative, Incipio cites Katala v. Healy, 728 N.E.2d 648 (Ill. App. Ct. 

2000), and Morgan, Lewis and Bockius, LLP v. City of East Chicago, 934 N.E.2d 23 

(Ill. App. Ct. 2010) for the proposition that, even if the defendant does not physically 

enter Illinois, it can have minimum contacts with Illinois if it negotiates a contract 

with an Illinois resident entity. (Dkt. 16, Pl.’s Resp. at 13-14.) In both of those cases, 

however, the contracting plaintiff itself was an Illinois resident or entity. See Katala, 

728 N.E.2d at 655 (defendant negotiated and entered joint venture agreement with 

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Illinois resident); Morgan, 934 N.E.2d at 32 (defendant negotiated and contracted 

with an Illinois law firm). Under Armour did not contract with an Illinois resident: 

instead, it dealt with a Delaware corporation that had its principal place of business 

in California. That essential factual distinction renders Katala and Morgan of 

dubious effect. 

It does not matter that Incipio chose an Illinois resident (Goulden) as its agent 

for the purpose of negotiating the deal, as that factual nugget was insufficient to put 

Under Armour on notice that it could be haled into court in Illinois. Burger King, 471 

U.S. at 474-75 (“Jurisdiction is proper . . . where the contacts proximately result from 

actions by the defendant himself” not from “unilateral activity of another party or a 

third person”) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 

408, 417 (1984)). Put another way, Under Armour did not “purposefully avail” itself 

of Illinois law because it negotiated with a non-Illinois plaintiff whose chosen 

negotiator’s home office happened to be in Illinois. 

Incipio also contends that specific personal jurisdiction exists because the 

Settlement Agreement was to be performed in Illinois. In support of this argument, 

Incipio first emphasizes that the promissory note it agreed to sign over to Under 

Armour was held by Chicago-based Monroe Capital LLC. (Dkt. 16, Pl.’s Resp. at 14.; 

Dkt. 16-1, Goulden Aff. ¶¶ 13-14.) Incipio further emphasizes that Monroe Capital’s 

Chicago-based attorneys at Mayer Brown LLP drafted the provision of the Settlement 

Agreement that required Incipio to sign the promissory note over to Under Armour. 

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(Id.).4 These facts, Incipio says, show that significant performance of the Settlement 

Agreement was to (and did) occur in Illinois. (Id. at 12.) 

Monroe Capital is not a party to this suit; nor is it a party to the Settlement 

Agreement. That document did not even mention Monroe Capital, nor did the 

Settlement Agreement condition Incipio’s signing-over of the note on some action by 

Monroe Capital. (Dkt. 1-1, Settlement Agreement, at 2.) Incipio is wrong, therefore, 

to suggest that Monroe Capital’s role left the Settlement Agreement so “substantially 

connected to Illinois” that Under Armour could “reasonably anticipate being haled 

into court” in Illinois. (Dkt. 16, Pl.’s Resp. at 14.); Burger King, 471 U.S. at 474 

(cleaned up). 

Even if Monroe Capital were crucial to Incipio’s performance, as Incipio says, 

it is Under Armour’s performance of the contract, not Incipio’s (or any other entity’s), 

that matters for personal jurisdiction. See Purdue Rsch., 338 F.3d at 780 (“Notably, 

it must be the activity of the defendant that makes it amenable to jurisdiction, not 

the unilateral activity of the plaintiff or some other entity”); Cherry Commc’ns, Inc. 

v. Coastal Tel. Co., 906 F. Supp. 452, 455 (N.D. Ill. 1995) (“it is well established that 

the place of plaintiff’s performance has no influence on jurisdiction”); Corus Int’l, 765 

F. Supp. 2d at 1086 (“ . . . although [p]laintiff points out a large number of activities 

4 Incipio did not mention either Monroe Capital or Mayer Brown in its complaint. 

Moreover, it is unclear whether Monroe Capital’s engagement of Mayer Brown and the 

details surrounding the drafting of the Assignment Condition provided by Goulden in his 

affidavit constitute competent evidence. (Dkt. 16-1, Goulden Aff. ¶¶ 14-16.) See Fed. R. Evid. 

802. See also Harlem Ambassadors Prods., Inc. v. ULTD Ent. LLC, 281 F. Supp. 3d 689, 695 

(N.D. Ill. 2017) (unidentified customer informing the plaintiff that the defendant contacted 

them was inadmissible hearsay). For present purposes, however, the Court assumes that this 

evidence is properly considered. 

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it undertook in Illinois in furtherance of the Settlement Agreement, it fails to indicate 

any Illinois-based action on [the] [d]efendant’s part”). It is not relevant that Monroe 

Capital “has a significant interest in [Incipio’s] financial well-being” due to its senior 

lien on Incipio’s assets; nor is it relevant that Monroe Capital held the promissory 

note Incipio said it would sign over to Under Armour. (Dkt. 16, Pl.’s Resp. at 14.; Dkt. 

16-1, Goulden Aff. ¶¶ 3-4, 13.) Incipio thus fails to allege a critical missing 

requirement: that Under Armour was to perform its part of the Settlement 

Agreement in Illinois. 

Finally, Incipio’s reliance on the location of Monroe Capital’s counsel (Mayer 

Brown) is a nonstarter. As another judge in this District has explained, that a 

plaintiff’s attorney was present in Illinois “is entirely irrelevant to where the 

alleged . . . injury was suffered.” See Price v. Schlee & Stillman, LLC, No. 16-cv-8020, 

2017 WL 2838265, at *3 (N.D. Ill. 2017). Mayer Brown’s presence in Illinois does not 

compel a finding of personal jurisdiction. 

When Incipio’s allegations are considered in the light of the governing Illinois 

test for personal jurisdiction, the Court must hold that there is insufficient evidence 

to support a finding that Under Armour can be bound to this action consistent with 

applicable principles of due process. Accordingly, the motion to dismiss for lack of 

personal jurisdiction must be granted. 

IV. CONCLUSION 

For the foregoing reasons, the Court finds that Plaintiff Incipio has failed to 

allege sufficient minimum contacts to support the exercise of specific jurisdiction over 

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Defendant Under Armour. Accordingly, Under Armour’s motion to dismiss for lack of 

jurisdiction is granted without prejudice. Incipio is given leave to file an amended 

complaint, on or before September 7, 2021, if Incipio believes, consistent with Rule 

11 of the Federal Rules of Civil Procedure, that an amended pleading can cure the 

jurisdictional issues identified in this opinion. 

SO ORDERED in No. 20-cv-04800. 

Date: August 16, 2021 

 JOHN F. KNESS 

 United States District Judge 

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