Terry et al v. Ameriquest Mortgage Company et alMEMORANDUMN.D. Ill.August 28, 2008 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROSE TERRY, TERRY WATT, ROY PARNELL, JOHANNA GUYTON, LUISA and JORGE BOLO, SELVIN and BEATRICE QUIRE, JUAN BAEZ, and CRUZ RIVERA and JULIE NORADIN, Plaintiffs vs. AMERIQUEST MORTGAGE COMPANY, AMERIQUEST CAPITAL CORPORATION, ACC CAPITAL HOLDINGS, INC., AMERIQUEST MORTGAGE SECURITIES, INC., DEUTSCHE BANK NATIONAL TRUST COMPANY, DAWN ARNALL and WAYNE LEE Defendants Case No.: 08CV2475 Honorable David H. Coar DEFENDANT WAYNE LEE’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS UNDER RULE 12(B)(2) FOR LACK OF PERSONAL JURISDICTION AND RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM INTRODUCTION This Court should dismiss Defendant Wayne Lee ("Mr. Lee") from this action because it cannot exercise personal jurisdiction over Mr. Lee. The following critical facts mandate this conclusion: Lee is a non-resident of Illinois. Plaintiffs have not alleged any facts to support personal jurisdiction over him, and indeed his affidavit establishes that the minimum contacts necessary to exercise personal jurisdiction over him do not exist. Even if such minimum contacts did exist, Illinois' "fiduciary shield" doctrine would prohibit this Court from exercising personal jurisdiction in this case. Even if Mr. Lee were subject to personal jurisdiction in Illinois, this Court should dismiss Plaintiffs' complaint against Mr. Lee pursuant to Rule 12(b)(6). Counts I and II make no 1 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 1 of 9 allegations against Mr. Lee and should be dismissed as to him. Count III, alleging a fraudulent conveyance, should be dismissed for the following reasons: Plaintiffs do not allege that they have a debtor/creditor relationship with Ameriquest Capital Corporation ("ACC"), the entity alleged to have made the fraudulent transfer, as they must do in order to succeed on such a claim. Plaintiffs' claims under Section 5(a)(1) of the Illinois Uniform Fraudulent Transfer Act ("IUFTA") do not sufficiently allege that any defendant attempted to defraud a creditor. Many of Plaintiffs' alleged claims arose after the date of the transfers complained of, and therefore cannot form the basis for a cause of action under Section 6 of the IUFTA. I. FACTUAL BACKGROUND A. Plaintiffs' Allegations Count I of the Complaint alleges that various lenders and loan servicers violated the federal Truth In Lending Act, 15 U.S.C. Section 1601, and its associated regulations, in connection with loans received by Plaintiffs. Count II alleges that these lenders and servicers violated the Illinois Consumer Fraud Act. Counts I and II do not allege that Mr. Lee committed any misconduct relevant to those Counts, and indeed do not even mention Mr. Lee. Count III alleges a violation of the Illinois Uniform Fraudulent Transfer Act, 740 ILCS Section 160/5 and 160/6. Plaintiffs allege that Mr. Lee received $34.75 million in transfers from Ameriquest Capital Corporation, and that these payments violated the IUFTA. (See generally Complaint at ¶¶ 212-293). B. Lee's Lack of Contact with Plaintiffs or Illinois Lee is a citizen of the State of California and currently resides in California. (Declaration of Wayne Lee ("Lee Decl."), attached hereto at Tab 1, at ¶ 3). Lee does not own, rent, or possess, nor has he ever owned, rented, or possessed, any property in Illinois. (Id. at ¶ 4). Lee does not maintain, nor has he ever maintained, a residence in Illinois. (Id. at ¶¶ 3-4). Lee is not, nor has he ever been, registered to vote in Illinois. (Id. at ¶ 4). Lee does not personally conduct, 2 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 2 of 9 nor has he ever personally conducted, any business in Illinois. (Id. at ¶¶ 4,8). Lee does not maintain, nor has he ever maintained, any bank accounts in Illinois. (Id. at ¶ 4). Lee has never sued or been sued in an Illinois court, or made any other use of the Illinois court system. (Id. at ¶ 5). Mr. Lee’s only connection to some of the loans in this action is as chief executive officer of defendant ACC Capital Holdings, Inc. (“ACCCH”) between June of 2004 and May of 2005. (See id. at ¶ 7). Only a handful of the twenty-three loan transactions at issue in this case closed during this time. (Complaint, ¶¶ 4-26). As CEO of ACCCH, Mr. Lee at no time interacted with any of the named Plaintiffs in this action. Specifically, he did not serve as the Ameriquest representative who contacted the Plaintiffs to discuss their various loan terms. He did not assist Plaintiffs in processing their mortgage loans, nor was he present at the closing of their respective loans. (Lee Decl. at ¶ 6). While Mr. Lee occasionally traveled to Illinois to visit company facilities during this time period, his visits were solely for the purposes of fulfilling his duties as CEO of ACCCH. (Id. at ¶ 8).1 In or around June 2005, Mr. Lee left ACCCH after 15 years of service with the company and its affiliates. Given his expertise in this field and his knowledge of ACCCH’s proprietary information, Mr. Lee and ACCCH’s holding company, Ameriquest Capital Corporation (“ACC”), entered into a consulting agreement whereby Mr. Lee would, inter alia: 1) provide consulting services to ACC; and 2) agree not to compete with ACC. (See id. at ¶ 9 and Ex. A). This agreement, referenced in the Complaint (e.g., Complaint at ¶ 224), was negotiated and executed in California. The parties to this agreement were both California citizens, and ACC's corporate headquarters were located in California. (Id. at ¶¶ 3, 7, 9 and Ex. A). The agreement provided that it would be governed by California law. (Id. at Ex. A). 1 Plaintiffs do not allege that Mr. Lee’s occasional travels to Illinois were related to their fraudulent conveyance claims. 3 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 3 of 9 II. ARGUMENT A. Plaintiffs' Complaint Should Be Dismissed For Lack Of Personal Jurisdiction. 1. Plaintiffs have not, and cannot, allege that Mr. Lee has sufficient "minimum contacts" with Illinois. Here, plaintiffs bear the burden of showing a prima facie case of personal jurisdiction for each and every defendant. See Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir. 2000).2 A federal district court sitting in Illinois may exercise personal jurisdiction over a nonresident defendant only if an Illinois state court would have personal jurisdiction over that defendant. See Michael J. Newman & Assocs., Ltd. vs. Florabelle Flowers, Inc., 15 F.3d 721, 724 (7th Cir. 1994). Illinois law extends personal jurisdiction only to the extent permitted by the Illinois Constitution and the Constitution of the United States. See 735 ILCS 5/2-209(c); Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 714-15 (7th Cir. 2002). Accordingly, personal jurisdiction can be analyzed simply on federal due process grounds. Hyatt, 302 F.3d at 715-16; see also United Fin. Mortgage Corp. v. Bayshores Funding Corp., 245 F. Supp. 2d 884, 891-92 (N.D. Ill. 2002) (condensing the personal jurisdiction analysis into a single federal due process inquiry); Interlease Aviation v. Vanguard Airlines, Inc., 262 F. Supp. 2d 898, 905-06 (N.D. Ill. 2003). Under the federal due process clause, a state court may exercise personal jurisdiction over a nonresident defendant only if the defendant has certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Florabelle Flowers, Inc., 15 F.3d at 725. Critical to this inquiry is whether the defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and 2 Thus, where the defendant submits an affidavit contesting personal jurisdiction, a plaintiff asserting the existence of personal jurisdiction "must go beyond the pleadings and submit affirmative evidence supporting the existence of jurisdiction.” Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 783 (7th Cir. 2003). 4 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 4 of 9 protections of its laws. See Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano County, 480 U.S. 102, 109 (1987) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Forum courts can, in two different ways, properly exercise personal jurisdiction consistent with International Shoe and its progeny. A court may exercise "general jurisdiction" over the citizens of a state and over persons or entities that transact business in the forum state on a systematic and regular basis. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); see also Interlease, 262 F. Supp. 2d at 906. When a court exercises general jurisdiction over a defendant, there is no need to show that the action at issue “arises from” the defendant's contacts with the forum. Alternatively, courts may in some cases exercise "specific jurisdiction." Specific jurisdiction may be exercised over a defendant only where the action “arise[s] out of or [is] related to the defendant’s contacts with the forum.” Helicopteros, 466 U.S. at 414 n.8. Here, Plaintiffs have not alleged, nor can they allege, facts to support general jurisdiction. Plaintiffs do not allege that Mr. Lee transacted business in Illinois. Further, Mr. Lee's declaration establishes that he does not have the continuous and systematic contacts with Illinois that would be required to justify the exercise of general jurisdiction. Mr. Lee is a California resident who has never: 1) owned, rented or possessed property in Illinois; 2) maintained a residence in Illinois; 3) registered to vote in Illinois; 4) personally conducted any business in Illinois; 5) maintained any bank accounts in Illinois; or 6) made use of the Illinois court system. (Lee Decl. at ¶¶ 3-5). On these facts, Mr. Lee cannot be subject to general jurisdiction in Illinois. See Interlease, 262 F. Supp. 2d at 907. Nor have Plaintiffs alleged facts sufficient to show that their action “aris[es] out of or [is] related to the defendant’s contacts with the forum,” a sine qua non for the exercise of specific jurisdiction. Helicopteros, 466 U.S. at 414 fn. 8. The only allegations as to Mr. Lee, contained in Count III, are not alleged to have occurred in Illinois, and Mr. Lee's declaration establishes that they indeed did not occur there. Rather, the pivotal acts alleged in the Complaint relating to Plaintiffs’ claim of fraudulent conveyance all occurred in California at a time when Mr. Lee was 5 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 5 of 9 leaving ACCCH, thus specific jurisdiction does not exist here. 2. Even if Plaintiffs had alleged sufficient minimum contacts, the fiduciary shield doctrine prevents Illinois from exercising personal jurisdiction over Mr. Lee. "The fiduciary shield doctrine is a limitation on the reach of the Illinois long-arm statute that protects a non-resident [defendant] from being haled into court in Illinois in his individual capacity when that person’s only contact with Illinois is ‘by virtue of his acts as a fiduciary of a corporation.”’ Plastics Film Corp. of Am., Inc. v. UNIPAC, Inc., 128 F. Supp. 2d 1143, 1146 (N.D. Ill. 2001) (quoting Alpert v. Bertsch, 601 N.E.2d 1031, 1037 (Ill. App. Ct. 1992); see also Dick Corp. v. SNC-Lavalin Constructors, Inc., No. 04 C 1043, 2006 WL 1049724, *4 (N.D. Ill. April 20, 2006) (“if an individual has contact with a state only by virtue of his acts as a fiduciary of a corporation, such acts may not form the basis for the exercise of personal jurisdiction in Illinois”) (attached at Tab 2). This doctrine recognizes that an individual whose presence and activity in a forum stems solely from his conduct on behalf of an employer cannot fairly or reasonably be held subject to personal jurisdiction on the basis of such business-related conduct. Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994); Rollins v. Ellwood, 565 N.E.2d 1302, 1318 (Ill. 1990). Any of Mr. Lee's tangential contacts with Illinois were made in connection with his employment as chief executive officer of defendant ACCCH. Such contacts were “a product of, and was motivated by, his employment situation and not his personal interests," and it would be "unfair to use this conduct to assert personal jurisdiction over him as an individual.” Rollins, 565 N.E.2d at 1318. Accordingly, the fiduciary shield doctrine also prevents an Illinois court from exercising personal jurisdiction over Mr. Lee. 6 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 6 of 9 B. Plaintiffs' Complaint Should Be Dismissed For Failure to State a Claim. Even if this Court did have personal jurisdiction over Mr. Lee, it should still dismiss the Complaint as to him because it fails to state a claim upon which relief can be granted. To state a claim in federal court, a plaintiff must “give the defendant … the grounds upon which it rests.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotation omitted). While the court must assume that a plaintiff’s allegations are true on a motion to dismiss, the Court may disregard conclusory allegations and unreasonable inferences. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). Thus, a claim requires “more than … merely creat[ing] a suspicion of a … cause of action,” and more than stating “a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted). At the same time, “a plaintiff can plead himself out of court by alleging facts that show there is no viable claim.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). The dismissal does not rest on whether a legal theory has been set forth in the complaint. Neitzke v. Williams, 490 U.S. 319, 327 (1989). Rather, the relevant question is whether the facts alleged are sufficient to prove a claim as a matter of law. Id. With respect to Counts I and II of the Complaint, Plaintiffs have not made any allegations against Mr. Lee. Accordingly, those counts should be dismissed as to Mr. Lee. Count III should also be dismissed as to Mr. Lee. As an initial matter, Plaintiffs have not alleged that they have a creditor/debtor relationship with ACC, as they must do in order to allege any fraudulent conveyance claim. Further, with respect to the fraudulent conveyance claims made under Section 5 of the Illinois Uniform Fraudulent Transfer Act ("IUFTA"), these claims fail because Plaintiffs have not alleged, as they must, that the transaction between ACC and Mr. Lee was made with the intent to defraud future creditors. Finally, with respect to Plaintiffs' claims made 7 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 7 of 9 under Section 6 of the IUFTA, these claims fail to the extent that Plaintiffs did not receive their loans prior to the date of the transaction. Indeed, most of the Plaintiffs' loans closed after the date of the alleged agreement, and cannot claim that their claims "arose before the transfer was made or the obligation was incurred," as Section 6 requires in order to recover. Mr. Lee hereby incorporates and adopts by reference the legal explanation and arguments made on these points in Part III of Defendants Ameriquest Mortgage Company's, Ameriquest Capital Corporation's, ACC Capital Holdings, Inc.'s, and Ameriquest Mortgage Securities, Inc.'s Motion To Dismiss Pursuant to Rule 12(b)(6) For Failure To State A Claim. CONCLUSION Defendant Wayne Lee does not have the requisite contacts with Illinois sufficient to support jurisdiction and no part of Plaintiffs’ claim asserted against Mr. Lee arose from his contacts with Illinois. Consequently, Mr. Lee respectfully submits that this Court should dismiss the Complaint for want of personal jurisdiction under Rule 12(b)(2). In addition, because Plaintiffs have failed to plead facts sufficient to maintain a cause of action against Mr. Lee, this Court should dismiss all three counts of the Complaint pursuant to Rule 12(b)(6). Respectfully submitted, DATED: August 28, 2008 By: /s/ Thomas J. Wiegand Thomas J. Wiegand Gregory J. Miarecki David E. Dahlquist Winston & Strawn, LLP 35 West Wacker Drive Chicago, Illinois 60601-9703 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 twiegand@winston.com Attorneys for Wayne Lee 8 Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that on August 28, 2008, I filed the above and foregoing with the Court's ECF system and by doing so served a copy on all parties. /s/ Thomas J. Wiegand__________________ Attorney for Wayne Lee Case 1:08-cv-02475 Document 57 Filed 08/28/2008 Page 9 of 9 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROSE TERRY, TERRY WATT, ROY PARNELL, JOHANNA GUYTON, LUISA and JORGE BOLO, SELVIN and BEATRICE QUIRE, JUAN BAEZ, and CRUZ RIVERA and JULIE NORADIN, Plaintiffs vs. AMERIQUEST MORTGAGE COMPANY, AMERIQUEST CAPITAL CORPORATION, ACC CAPITAL HOLDINGS, INC., AMERIQUEST MORTGAGE SECURITIES, INC., DEUTSCHE BANK NATIONAL TRUST COMPANY, DAWN ARNALL and WAYNE LEE Defendants Case No.: 08CV2475 Honorable David H. Coar DEFENDANT WAYNE LEE’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS UNDER RULE 12(B)(2) FOR LACK OF PERSONAL JURISDICTION AND RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM INDEX OF EXHIBITS 1. Declaration of Wayne Lee 2. Dick Corp. v. SNC-Lavalin Constructors, Inc., No. 04 C 1043, 2006 WL 1049724 (N.D. Ill. April 20, 2006) Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 1 of 13 Exhibit 1 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 2 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 3 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 4 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 5 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 6 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 7 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 8 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 9 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 10 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 11 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 12 of 13 Case 1:08-cv-02475 Document 57-2 Filed 08/28/2008 Page 13 of 13 Exhibit 2 Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 1 of 8 Dick Corp. v. SNC-Lavalin Constructors, Inc. N.D.Ill.,2006. Only the Westlaw citation is currently available. United States District Court,N.D. Illinois, Eastern Division. DICK CORPORATION, a Pennsylvania corpora- tion, Plaintiff, v. SNC-LAVALIN CONSTRUCTORS, INC., a Delaware corporation and PCL Industrial Construc- tion, Inc., a Colorado Corporation, John Gillis and Michael Ranz, Defendants. No. 04 C 1043. April 20, 2006. Lawrence R. Moelmann, Timothy Allen Hickey, Hinshaw & Culbertson, Chicago, IL, Jeffrey P. Macharg, Kirsten R. Rydstrom, Tarek F. Abdalla, Reed Smith Shaw & McClay, Pittsburgh, PA, for Plaintiff. David T. Pritikin, Thomas David Rein, Christopher Braddock Seaman, Douglas I. Lewis, Jamie L. Secord, Sidley Austin LLP, Donald A. Tarkington, Andrew Dylan Campbell, Novack & Macey, Chica- go, IL, Peter J. Gleekel, Philip R. Mahowald, Samuel T. Lockner, Winthrop & Weinstine, P.A., Minneapolis, MN, for Defendants. MEMORANDUM ORDER AND OPINION ASPEN, J. *1 Plaintiff Dick Corporation's Fourth Amended Complaint against Defendants SNC-Lavalin Con- structors, Inc., PCL Industrial Construction, Inc., John Gillis, and Michael Ranz, alleges copyright in- fringement, tortious interference with prospective business relations, tortious interference with con- tractual relations, conversion, and misappropriation of trade secrets. Presently before us is defendants Gillis' and Ranz's (“Defendants”) motion to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. As set forth below, we find that the fiduciary shield doctrine prevents us from exercising personal juris- diction over Defendants. BACKGROUND Plaintiff Dick Corporation (“Dick”) is a company registered and organized under the laws of Pennsylvania with its principal place of business in Large, Pennsylvania. (Fourth Am. Compl. ¶ 1.) Around May 12, 1999, Dick entered into a joint venture with the National Energy Production Cor- poration (“NEPCO”), a Delaware corporation, to serve as the general engineering, procurement and construction contractor for the Kendall County Generation Facility (“Kendall”), a power plant loc- ated in Minooka, Illinois. (Id. ¶¶ 2, 12-13.)“As part of the [j]oint [v]enture, Dick and NEPCO created certain engineering designs, drawings, design data, calculations, specifications, intellectual property and other related documents [ (“Drawings”) ] ... [and] certain scheduling information, cost projec- tions, cost information, bidding information and other financial reports ... [ (“Data”) ] for the pur- pose of constructing the Kendall facility.”(Id. ¶¶ 18-19.)The Dick/NEPCO joint venture agreement included exclusivity provisions, such as “all docu- ments produced for or by the [j]oint [v]enture shall be owned by the [j]oint [v]enture ... [N]either party shall use the documents for other projects without the prior written consent of the others.”(Id. ¶ 17.)The agreement also prohibited either party from transferring or assigning any joint venture work product without prior written consent. (Id. ¶ 16.) On December 21, 2000, NEPCO executed a con- tract with LSP-Nelson to perform engineering, pro- curement, and construction services for the Nelson facility (“Nelson”), a power plant located in Dixon, Illinois. (Id. ¶¶ 12, 21.)NEPCO created a joint ven- ture with PCL Industrial Construction, Incorporated (“PCL”), a Colorado corporation, regarding per- Not Reported in F.Supp.2d Page 1 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 2 of 8 formance of the Nelson contract on February 28, 2002, at which time LSP-Nelson and PCL entered into an “Amended and Restated Turnkey Engineer- ing, Procurement and Construction Agreement dated as of December 21, 2000 (“Restated Nelson Contract”).”(Id. ¶ 22.)The Restated Nelson Con- tract provides that “major power block design, equipment layout, building general arrangement, condensate/feedwater/steam piping design, and electrical design for the [Nelson] [f]acility are sub- stantially similar to that for the Kendall Project.”(Id. ¶ 24.)In the spring of 2002, SNC Lavalin Constructors, Inc. (“SNC”), SNC Lavalin's subsidiary, “entered into an arrangement to perform construction-related services at the Nelson [f]acility.”(Id. ¶ 23.) *2 Dick filed a five count complaint in the Northern District of Illinois alleging that SNC, PCL, John Gillis, and Michael Ranz improperly and without consent copied, distributed, misappropriated, used, and created derivative works from the joint venture Drawings and Data to construct Nelson. (Id. ¶ 29.)Gillis, former President of NEPCO and current Chief Operating Officer at SNC, and Ranz, former Vice President of NEPCO and current Senior Vice President of SNC-both residents of Redmond, Washington-moved to dismiss the charges against them claiming a lack of personal jurisdiction. (Mot. to Dismiss at 5, 6.) Dick counters that both indi- vidual defendants established minimum contacts with Illinois since they each knew about the re- strictive covenants in the Dick/NEPCO joint ven- ture agreement, executed and/or participated in the negotiation and performance of the Kendall and Nelson contracts, and managed and supervised both Illinois projects. (Fourth Am. Compl. ¶¶ 20-31, 34-41; Pl. Resp. to Mot. to Dismiss at 9-19.) STANDARD OF REVIEW In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of showing a prima facie case of personal jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003); see RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997); Wasendorf v. DBH Brokerhaus AG, No. 04 C 1904, 2004 WL 2872763, at *2 (N.D.Ill.Dec.13, 2004). In determining whether we have personal jurisdiction, we may receive and con- sider affidavits and other materials submitted by the parties. See Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987), superceded by statute on other grounds as stated inFMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir.1990). For purposes of a motion to dismiss based on personal jurisdiction, we “accept all allegations of the complaint as true except those controverted by defendants' affi- davits.”Northwestern Corp. v. Gabriel Mfg. Co., No. 96 C 2004, 1996 WL 73622, at *2 (N.D.Ill. Feb.6, 1996). Where the defendant submits an affi- davit contesting personal jurisdiction, “the plaintiff must go beyond the pleadings and submit affirmat- ive evidence supporting the existence of jurisdic- tion.”Purdue, 338 F.3d at 783 (emphasis added). We resolve all factual disputes in the record in plaintiff's favor, but we may accept as true those facts presented by defendant that remain uncon- tested. Id.;RAR, 107 F.3d at 1275. ANALYSIS I. Personal Jurisdiction In a case based on diversity of citizenship, a federal court sitting in Illinois may exercise personal juris- diction over a nonresident defendant only to the ex- tent that an Illinois court could do so. Klump v. Duffus, 71 F.3d 1368, 1371 (7th Cir.1995); see Mi- chael J. Neuman & Assoc., Ltd. v. Florabelle Flowers, Inc., 15 F.3d 721, 724 (7th Cir.1994). Therefore, to survive a motion to dismiss the plaintiff must make a prima facie showing that ex- ercising jurisdiction over a nonresident party com- plies with the Illinois long-arm statute, the Illinois Constitution, and federal constitutional due process requirements. See Cent. States, Southeast & South- west Areas Pension Fund v. Reimer Express World Not Reported in F.Supp.2d Page 2 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 3 of 8 Corp., 230 F.3d 934, 939 (7th Cir.2000); see also RAR, 107 F.3d at 1276. *3 The Illinois long-arm statute permits Illinois courts to exercise jurisdiction over a defendant where the cause of action arises from the transac- tion of business, commission of a tort, “making or performance of any contract or promise substan- tially connected with this State[,]” or any basis per- mitted by the state and federal Constitutions. 735 Ill. Comp. Stat. 5/2-209 (a) (1, 2, 7), (c); Cent. States, 230 F.3d at 940;RAR, 107 F.3d at 1276. The record demonstrates that Gillis and Ranz each es- tablished minimum contacts with Illinois subjecting themselves to this court's jurisdiction. For example, Gillis executed and Ranz was involved with negoti- ating and overseeing the two contracts at issue, which were to be performed in Illinois.FN1 FN1. More specifically, Gillis executed the Dick/NEPCO joint venture agreement, the NEPCO/LSP-Kendall contract, and the Nelson contract. (Resp. to Mot. to Dismiss at 3-4, 6-7.) Ranz executed a services agreement for engineering work on Kend- all, the joint venture with PCL, and the subcontract for construction on Nelson. (Id. at 5,152 Ill.Dec. 384, 565 N.E.2d 1302.) Also, Gillis was a member and Ranz was an alternate member of the “Executive Committee” for the Dick/ NEPCO joint venture and the PCL agree- ment. (Id. at 3, 6, 152 Ill.Dec. 384, 565 N.E.2d 1302.) Additionally, Ranz “led the discussions” while negotiating with PCL and used Kendall Drawings and Data in developing an estimate for Nelson.(Id. at 4, 5, 152 Ill.Dec. 384, 565 N.E.2d 1302; Ranz Dep. at 91.) While Ranz did not dir- ectly supervise or participate in the con- struction of either project, he was respons- ible for general oversight of the project managers and project directors. (Resp. to Mot. to Dismiss at 5-6.) For example, he visited Illinois three times to participate in Kendall and/or Nelson meetings about schedule status, staffing, safety, quality, financial status, and client relations. (Id. at 6, 152 Ill.Dec. 384, 565 N.E.2d 1302; Ranz Dep. at 40.) Finally, Gillis and Ranz received periodic status reports on Kendall and Nelson, both defendants attended monthly meetings where all pending projects were discussed, and both individu- als were aware at all times that Kendall and Nelson were in Illinois. (Resp. to Mot. to Dismiss at 4, 6-7.) Gillis' and Ranz's lack of material presence in Illinois does not preclude finding that they estab- lished the requisite minimum contacts because the Supreme Court has held that an individual who nev- er physically enters the forum state could nonethe- less be subject to its jurisdiction if he purposefully directs conduct towards residents of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (finding personal jurisdiction in Florida where the defendant knowingly engaged in a busi- ness relationship with the plaintiff, a Florida com- pany, even though he never entered Florida to con- duct business); see also Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (finding that despite the lack of physical contacts with the forum state, an editor and journalist of a Florida-based tabloid periodical were subject to personal jurisdiction in California in an action arising out of an allegedly defamatory article re- garding a California resident). Gillis and Ranz pur- posefully directed their actions toward Illinois by entering into contracts that called for performance in the state and by participating in and overseeing performance in Illinois. FN2 FN2.See n. 3, supra.In addition, based on the uncontroverted allegations in the com- plaint, Gillis and Ranz knew “the restric- tions on the use, assignment and transfer of [the] Drawings and Data[, they] ... were in a position to control the use, copying, Not Reported in F.Supp.2d Page 3 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 4 of 8 modification, assignment and transfer of the [information, and they] authorized, in- duced, contributed and/or approved or were otherwise a moving force behind the copying modification and use of the [information] to construct the Nelson Fa- cility.”(Resp. to Mot. to Dismiss. at 12.) Defendants argue that the above described prin- ciple, coined “the effects doctrine,” does not apply because plaintiff is not an Illinois resident. We dis- agree. In applying the effects doctrine, the Seventh Circuit focuses on the location of the alleged injury rather than the plaintiff's residency. See Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir.1997) (“[T]he state in which the injury (and therefore the tort) occurs may require the wrongdoer to answer for its deeds even if events were put in train outside its borders.”); see also Interlease Aviation Investors II (ALOHA) L.L.C. v. Vanguard Airlines, Inc., 262 F.Supp.2d 898, 910 (N.D.Ill.2003) (quoting and ap- plying Janmark); see also Spank! Music & Sound Design, Inc. v. Hanke, No. 04 C 6760, 2005 WL 300390, at *3 (N.D.Ill. Feb.7, 2005) (“The Seventh Circuit has interpreted the effects doctrine broadly to permit the state in which the victim of a tort suf- fers injury to entertain the suit, even if all other rel- evant conduct occurred outside the state.”). Dis- cussing its reasoning in Janmark, the Seventh Cir- cuit noted that if a California corporation injured an Illinois corporation in New Jersey, New Jersey would retain jurisdiction despite the fact that the victim would suffer financial consequences in Illinois. Id. at 1202.Similarly, a Pennsylvania cor- poration doing business in Illinois can be injured in Illinois, thus allowing Illinois to exercise jurisdic- tion upon the wrongdoers. Plaintiff allegedly suffered harm in Illinois, inter alia, because the Nelson power plant-located in Illinois-was built us- ing Kendall's Drawings and Data in violation of the agreement with NEPCO, which prohibited transfer, distribution, or use of intellectual property created by the Dick/NEPCO joint venture for Kendall.FN3 FN3. The cases cited by defendant are in- apposite. Gillis and Ranz knew the Kendall and Nelson contracts called for perform- ance in Illinois, the alleged wrongful use of the Drawings and Data occurred in Illinois (evidenced by the existence of the Nelson power plant), and plaintiff al- legedly lost its competitive advantage in Illinois. Cf. Continental Cas. Co. v. Marsh, No. 01 C 0160, 2002 WL 31870531, at *6 (N.D.Ill.Dec.23, 2002) (finding that de- fendant would not reasonably anticipate being haled to court in Illinois where no evidence supported the argument that de- fendant's allegedly wrongful activities re- garding a financing agreement with a Maryland corporation were directed to that company's Illinois, as opposed to Mary- land, office.) *4 Gillis and Ranz “purposefully availed [themselves] of the privilege of conducting activit- ies within [Illinois], thus invoking the protections and benefits of its laws.”See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Dick's claims arose from and relate to Gil- lis' and Ranz's contacts with Illinois, justifying the exercise of specific jurisdiction.FN4Helicopteros, 466 U.S. at 414 n. 8;RAR, 107 F.3d at 1278. The deposition testimony and unrefuted allegations in the complaint show that Gillis and Ranz were sub- stantially involved (in their official capacity) with the execution and performance of the two contracts to build power plants in Illinois. Consequently, the defendants “should [have] reasonably anticipate[d] being haled into court” in Illinois. See Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 716 (7th Cir.2002) (quoting Burger King Corp., 471 U.S. at 474 (internal citations omitted)). FN4. Plaintiff does not contend that Gillis' and Ranz's contacts with Illinois are suffi- ciently pervasive to subject them to gener- al jurisdiction, which requires “continuous and systematic general business contacts” with the forum state. Helicopteros Not Reported in F.Supp.2d Page 4 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 5 of 8 Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); (Resp. to Mot. to Dismiss at 9, n. 5.). Rather, plaintiff submits that we have specific jurisdiction because its claims arose from and relate to Gillis' and Ranz's contacts with Illinois. Id. at 414 n. 8;RAR, 107 F.3d at 1278. Nonetheless, exercising jurisdiction over Gillis and Ranz would offend traditional notions of fair play and substantial justice under Illinois law. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); see also Rollins v. Ellwood, 141 Ill.2d 244, 275, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1316 (Ill.1990) (“[J]urisdiction is to be asserted only when it is fair, just, and reason- able to require a non-resident defendant to defend an action in Illinois, considering the quality and nature of the defendant's acts which occur in Illinois or which affect interests located in Illinois.”). Generally, “[t]he most important factors relevant to this inquiry are the interests of the states involved and the relative convenience of litigating in each state.”FN5Spank!, 2005 WL 300390, at *3. However, if an individual has contact with a state only by virtue of his acts as a fiduciary of a corpor- ation, such acts may not form the basis for the exer- cise of personal jurisdiction in Illinois. Brujis v. Shaw, 876 F.Supp. 975, 978 (N.D.Ill.1995) (citation omitted). This “fiduciary shield” gives effect to the concept of limited liability in corporations. FN5. If our inquiry were limited to the in- terests/burden analysis, exercising jurisdic- tion over defendants would be proper. Dick correctly points out that Illinois has an interest in this action because it in- volves the development of properties and services within its boundaries and protect- ing foreign companies conducting business with an Illinois license (which in turn helps encourage foreign investment). In addition, the majority of alleged wrongdoing and resulting injury occurred in Illinois. While defendants would likely prefer to adjudic- ate the claims in their home state, it is not unduly burdensome to travel and litigate in Illinois, especially since they would most likely be called as witnesses in the pending action in Illinois against their employer. When assessing applicability of the equitable doc- trine, courts consider the fiduciary's discretionary actions, personal interest, and whether the fiduciary is merely the corporation's alter-ego. See Interlease Aviation, 262 F.Supp.2d at 912;TruServe Corp. v. St. Yards, Inc., No. 99 C 6806, 2001 WL 743642, at *6 (N.D.Ill. June 29, 2001). There is no clear con- sensus in Illinois over the significance of each factor when applying the doctrine to high ranking corporate officials.FN6Although, the most recent string of cases have allowed high ranking officers with discretionary authority to benefit from the fi- duciary shield doctrine so long as they did not have an appreciable ownership interest in the company.FN7 FN6.See, e.g., Cons.Benefit Svcs., Inc. v. Encore Marketing Int'l, No. 01 C 6985, 2002 WL 31427021, *3 (N.D.Ill. Oct.30, 2002) (quoting Plastic Film Corp. of Am., Inc. v. Univac, Inc., 128 F.Supp.2d 1143, 1147 (N.D.Ill.2001) (“The determinative factor is the individual's status as a share- holder, not merely as an officer or direct- or.”)); Shapo v. Engle, No. 98 C 7909, 1999 WL 1045086, at *22 (N.D.Ill. Nov.12, 1999) (ruling that the fiduciary shield doctrine does not apply to high ranking corporate officers); Brujis, 876 F.Supp. at 979 (declaring no one factor de- terminative). FN7.Benda v. Per-Se Technologies, Inc., No. 04 C 952, 2004 WL 1375361, at *2 (N.D.Ill. June 17, 2004) (reiterating that the “determinative factor is the individual's status as a shareholder, not merely as an officer or director”) (quotation omitted); Interlease Aviation, 262 F.Supp.2d at 912 Not Reported in F.Supp.2d Page 5 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 6 of 8 (holding that being a high ranking officer of a company was insufficient to bar ap- plication of the fiduciary shield doctrine absent evidence of a personal stake in the company); Continental Cas. Co., 2002 WL 31870531, at *6-7 (determining that a vice president of a corporation was covered by the fiduciary shield doctrine despite being a high ranking official with discretion be- cause he had no financial stake in the com- pany); Plastics Film Corp., 128 F.Supp.2d at 1147 (holding that a CEO was protected by the fiduciary shield doctrine because he was not a shareholder of the corporation); but see Margulis v. Med. Parts Int'l, Inc., No. 98 C 0714, 1999 WL 183648, at *5 (N.D.Ill. Mar.25, 1999) (barring use of fi- duciary shield doctrine for high-ranking officers because they had a stake in the company merely as a result of their posi- tion). Gillis and Ranz were (and still are) high ranking of- ficials of NEPCO/SNC who established contacts with Illinois in their roles as corporate fiduciaries. In their official capacities, defendants were en- dowed with discretionary authority, and in fact used their discretion to enter into, execute, and monitor contracts FN8 calling for performance in Illinois. See n. 1, supra.However, the evidence shows that Gillis' involvement with the contracts at issue was perfunctory: he executed the contracts without close inspection, he could not recall any involve- ment in soliciting, negotiating, or performing the contracts, and he never copied or distributed (or directed anyone else to do so) the Drawings and Data. (Gillis Aff. ¶¶ 11-12; Gillis Dep. at 15-21, 23-24, 30.) Ranz took a more active role in the Illinois ventures: he engaged in the negotiating pro- cess for Nelson and visited Illinois on three occa- sions related to the Kendall project. (Ranz Dep. at 40.) The disparity between the defendants' involve- ment with Kendall and Nelson is inconsequential since “[t]he determinative factor is the individual's status as a shareholder [.]”Plastic Film Corp., 128 F.Supp.2d at 1147. FN8. Both defendants participated in monthly meetings to review schedule status, staffing, safety quality, finances, and client relations for all projects, includ- ing Kendall and Nelson, but neither Gillis nor Ranz directly supervised construction of the Illinois power plants. (Gillis Dep. at 13-15; Ranz Dep. at 48.) *5 Gillis and Ranz received stock options in Enron, NEPCO's parent company, and owned Enron stock through their respective 401-K programs. (Gillis Dep. at 34-35; Ranz Dep. at 107-08.) After 2002, Gillis also held stock options for shares in SNC- Lavalin, Inc., SNC's parent company. (Gillis Dep. 36-37.) The evidence, however, does not suggest that the issuance of stock options was related to the corporate officials' performance or company profit- ability. (Ranz Dep. at 107-08.) Moreover, most courts infer personal interest only where corporate officers have a direct, meaningful financial stake in the company.FN9 Dick does not allege that Gillis or Ranz owned a direct interest in NEPCO and/or SNC, nor does it allege that either defendant held an appreciable interest in their employers' parent companies. Defendants' stock options and 401-K shares do not evince the kind of meaningful, direct financial stake and/or personal interest contem- plated by Benda, Plastic Film Corp, and Continent- al Casualty Company.FN10 FN9.See, e.g., Cons.Benefit Servs., 2002 WL 31427021, at *4 (refusing to apply the fiduciary shield doctrine to the CEO and President where both officers exercised discretion and respectively owned 32.49% and 20.35% of the company); see also Bru- jis, 876 F.Supp. at 979 (finding personal interest where the president owned the vast majority of the company's stock). FN10. Recognizing the limited nature of defendants' ownership interest, Dick points to Gillis and Ranz's compensation to sup- Not Reported in F.Supp.2d Page 6 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 7 of 8 port a finding of personal interest. Ranz and Gillis speculated that bonuses were based on the company's profitability; if awarded, bonuses could comprise 10% to 25% of defendants' total compensation. (Gillis Dep. at 33; Ranz Dep. at 102-03.) However, defendants' interest in remunera- tion and job security is not the type of per- sonal stake that warrants denial of the fidu- ciary shield. See Glass v. Kemper Corp., 930 F.Supp. 332, 342 (N.D.Ill.1996) ( “[T]he Illinois Supreme Court has ex- pressly foreclosed [plaintiff's] argument that [defendant] benefitted financially from his Illinois contacts in that he was attempt- ing to curry favor with his employer, pre- sumably to remain employed and earn a salary or salary increase.”) Defendants did not benefit from a profit-sharing arrange- ment with the company, nor could they even specify how Kendall and Nelson (a small fraction of the company's projects) would factor into their overall compensa- tion. Additionally, the Fourth Amended Complaint con- tains no allegations that Gillis and/or Ranz acted “to advance personal rather than employer in- terests[,]” nor do the pleadings or the evidence sup- port such an inference. See Benda, 2004 WL 1375361, at *2 (quotation omitted). The allegations in the pleadings, the affidavits, and the deposition testimony all indicate that Gillis's and Ranz's ac- tions were “a product of, and [were] motivated by, [their] employment situation and not [their] person- al interest, ... [Thus] it would be unfair to use [such] conduct to assert personal jurisdiction over [them] as [ ] individual[s].”Cons.Benefit Svcs., Inc., 2002 WL 31427021, at *2 (quoting Rollins, 141 Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d at 1318). Absent a showing of meaningful, direct personal in- terest in NEPCO or SNC, barring application of the fiduciary shield would not comport with fair play and substantial justice.FN11 FN11. Dick does not allege that NEPCO and/or SNC were sham corporations or that Gillis and/or Ranz acted as the companies' alter egos. CONCLUSION For the reasons discussed above, defendants' mo- tion to dismiss for lack of personal jurisdiction is granted.FN12It is so ordered. FN12. As a result of our ruling, we need not consider defendants' motions to dis- miss for failure to state a claim. N.D.Ill.,2006. Dick Corp. v. SNC-Lavalin Constructors, Inc. Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) END OF DOCUMENT Not Reported in F.Supp.2d Page 7 Not Reported in F.Supp.2d, 2006 WL 1049724 (N.D.Ill.) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Case 1:08-cv-02475 Document 57-3 Filed 08/28/2008 Page 8 of 8
