Woodrum/Ambulatory Systems Development, LLC et al v. Lakeshore Surgicare, LLC et al

MEMORANDUM in Support of Motion to Dismiss

N.D. Ill.June 13, 2008

1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION WOODRUM/AMBULATORY SYSTEMS ) DEVELOPMENT, LLC, a Nevada ) limited liability company, and DAVID ) WOODRUM, ) ) Plaintiffs, ) ) v. ) Case No.08-C-1721 ) Judge Moran LAKESHORE SURGICARE, LLC, an Indiana ) Magistrate Judge Schenkier limited liability company; REASC, LLC, an ) Indiana limited liability company; ANTON ) THOMPKINS, M.D., BRUCE THOMA, M.D., ) DAVID MUSGRAVE, M.D., JAMES ) MALAYTER, M.D., GEORGE ALAVANJA, ) M.D., MARC BRUELL, M.D., MICHAEL ) LELAND, M.D., THOMAS KAY, M.D., and ) PAUL GRUSZKA, M.D., ) ) Defendants. ) MEMORANDUM IN SUPPORT OF CERTAIN DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION This Court should dismiss this case as to defendants Anton Thompkins, M.D. (“Thompkins”), Bruce Thoma, M.D. (“Thoma”), David Musgrave, M.D. (“Musgrave”), James Malayter, M.D. (“Malayter”), George Alavanja, M.D. (“Alavanja”), Marc Bruell, M.D. (“Bruell”), Michael Leland, M.D. (“Leland”), Thomas Kay, M.D. (“Kay”), and Paul Gruszka, M.D. (“Gruszka”) (collectively the “Doctors”) because these defendants are not subject to personal jurisdiction in Illinois. Additionally, venue is not proper in the Northern District of Illinois. These threshold jurisdictional issues preclude the Court Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 1 of 16 2 from reaching the merits of the case. As a preliminary matter, every federal court must determine that the matter before the Court satisfies three elements: (1) personal jurisdiction over the parties; (2) subject matter jurisdiction over the claim; and (3) proper venue. ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310, 1328-29 (N.D.Ill. 1990); see also Paper Systems, Inc. v. Mitsubishi Corp., 967 F. Supp. 364, 366 (E.D.Wis. 1997), citing Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 279, 283 (7th Cir. 1990). If any of these elements are lacking, the Court cannot hear the case. Id. The Court lacks personal jurisdiction over the Doctors because they are citizens of Indiana. The Doctors practice exclusively in Indiana. None of the Doctors have established minimum contacts with Illinois sufficient for the Court to exercise jurisdiction without offending federal and state due process. Venue is improper in this Court for three reasons. First, all of the underlying facts in paintiffs’ complaint, except for a single meeting between David Woodrum (“Woodrum”) and Thompkins, occurred in Indiana. Second, the Complaint – even if taken as true – fails to allege proper venue for seven out of eight causes of action. Finally, the mandatory choice of forum clause in the Settlement Agreement and Mutual Release (“Settlement Agreement”) between Woodrum Ambulatory Systems Development LLC (“WASD”) and Lakeshore Surgicare LLC (“Lakeshore”) applies to this action. The Settlement Agreement designates Indiana state courts as the exclusive forum to hear disputes between these parties. II. FACTUAL BACKGROUND The Doctors were members of Lakeshore, an Indiana limited liability company, Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 2 of 16 3 organized in May 2004 to build an ambulatory surgery center in Chesterton, Indiana (the “ASC”). (Trish Houlihan Affidavit (“Houlihan Aff.”), attached as Exhibit “A,” ¶¶ 5-6; Anton Thompkins, M.D. Affidavit (“Thompkins Aff.”), attached as Exhibit “B” ¶¶ 2, 3, 5.) The Doctors were also members of REASC LLC (“REASC”), an Indiana limited liability company, organized in January 2005 to own the real estate underlying the ASC. (Id.) The Doctors are Indiana citizens who practice medicine exclusively in Indiana (Houlihan Aff. ¶ 7; Thompkins Aff. ¶ 4.) None of the Doctors have referral relationships with Illinois entities. (Houlihan Aff. ¶ 8; Thompkins Aff. ¶ 4.) The Doctors do not advertise in Illinois. (Houlihan Aff. ¶ 9.) The Doctors treated 1,996 patients between 2004 and 2007. (Houlihan Aff. ¶10.) Of this number, fewer than 2% were Illinois patients. (Id.) WASD is a Nevada limited liability company. (Complaint at Law and for an Accounting (“Complaint”), ¶ 1.) David Woodrum (“Woodrum”) is an Illinois citizen. (Complaint, ¶ 2.) Woodrum sent a proposal/solicitation letter, dated April 2, 2004, to Thompkins offering WASD consultant services for the development of the ASC. (Thompkins Aff. ¶ 6.) Lakeshore entered into a Development Agreement with WASD on August 6, 2004 (the “Development Agreement”). (Development Agreement, attached as Exhibit “C,” Thompkins Aff. ¶ 6; Houlihan Aff. ¶ 11.) The Development Agreement was executed by both parties in Indiana. (Thompkins Aff. ¶ 7; Houlihan Aff. ¶ 12.) The Development Agreement is governed by Indiana law. (Development Agreement, p. 6, ¶ 6.6.) Woodrum and other members of WASD met with the Doctors and representatives of Lakeshore numerous times during WASD’s commission of its duties under the Development Agreement, all of which meetings were held in Indiana. (Thompkins Aff. ¶ Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 3 of 16 4 8; Houlihan Aff. ¶ 13.) During various times in 2004 and 2005, the members of Lakeshore discussed the possibility of WASD joining the membership of Lakeshore, with an offer for WASD to purchase units extended in October 2005. (Thompkins Aff. ¶ 9; Houlihan Aff. ¶ 14.) WASD failed to accept this offer by contributing capital. (Thompkins Aff. ¶ 9; Houlihan Aff. ¶ 14.) All of these discussions were at Lakeshore board meetings or other meetings held in Indiana. (Id.) Lakeshore counsel drafted a letter of intent (“LOI”) and operating agreement (“Lakeshore OA”) which provided for 80% ownership by the Doctors and 20% ownership by WASD. (Thompkins Aff. ¶ 10; Houlihan Aff. ¶ 15.) These draft versions of the LOI and Lakeshore OA were never finalized or executed. (Thompkins Aff. ¶ 10; Houlihan Aff. ¶ 15.) On December 15, 2005, at a board meeting of Lakeshore in Indiana, the members of Lakeshore voted to pursue Lake-Porter Ambulatory LLC’s (“Lake-Porter”) proposal to purchase the ASC. (Thompkins Aff. ¶ 11.) In a conversation with Thompkins, Woodrum suggested meeting for lunch at Lawry’s restaurant in Chicago on December 27, 2007. (Thompkins Aff. ¶ 12.) At this meeting, Thompkins informed Woodrum that the members of Lakeshore had voted to sell Lakeshore to Lake-Porter. (Id.) After Lakeshore was sold to Lake-Porter, Lake-Porter assumed by assignment the Development Agreement. After completion of the ASC, WASD initiated an arbitration proceeding against Lakeshore pursuant to the Development Agreement on March 8, 2007. (Thompkins Aff. ¶ 13.) This action was resolved by a Settlement Agreement and Mutual Release between Lakeshore and WASD dated October 17, 2007 (“Settlement Agreement”). (Settlement Agreement, attached as Exhibit “D”; Thompkins Aff. ¶ 14; Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 4 of 16 5 Houlihan Aff. ¶ 17.) The Settlement Agreement contained a choice of law and forum clause designating Indiana state courts as the exclusive venue. (Settlement Agreement, ¶ 7.) III. ARGUMENT A. The Doctors Are Not Subject to Personal Jurisdiction in Illinois. The Court does not have personal jurisdiction over the Doctors. Plaintiffs bear the burden of establishing a prima facie basis for personal jurisdiction against each defendant. Illinois Commerce Comm’n v. Entergy-Koch Trading, 841 N.E.2d 27, 32 (Ill. App. Ct. 2005). The Court has personal jurisdiction over a non-resident defendant only if Illinois state courts would have jurisdiction. RAR, Inc. v. Turner Diesel, Ltd. 107 F.3d 1272, 1275 (7th Cir. 2003) (emphasis added). Illinois state courts may assert personal jurisdiction over a defendant if it does not offend the guarantees of due process provided by the Illinois and United States Constitutions. Sabados v. Planned Parenthood of Greater Indiana, 882 N.E.2d 121, 125 (Ill. App. Ct. 2007). Federal due process requires that all defendants have sufficient “minimum contacts” with the forum state such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” Id. quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 111 (1987) clarified that both minimum contacts and reasonableness requirements must be met in order to establish personal jurisdiction. The reasonableness test relates to the magnitude and the purposefulness of each defendant’s contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Similarly, “Illinois due process requires that it be fair, just, and reasonable to require a non-resident defendant to defend an action in Illinois, considering Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 5 of 16 6 the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” Sabados, 882 N.E.2d at 126 1. Illinois does not have General Jurisdiction over the Doctors Personal jurisdiction may be general or specific. General jurisdiction requires that each defendant’s non-controversy related contacts be substantial, continuous, and systematic. Helicopteros Nacionales v. Hall, 466 U.S. 408, 414 (1984). Under a general jurisdiction analysis, there is no way that any of the Doctors’ contacts with Illinois meet these criteria. Plaintiffs allege that the Doctors are subject to general jurisdiction by “regularly seeing and treating patients who are Illinois residents.” (Complaint, ¶ 7.) Plaintiffs are wrong for two reasons. First, the Doctors do not regularly treat Illinois residents. (See Houlihan Aff. ¶ 10.) During the relevant time period of 2004-2007, fewer than 2% of the Doctors’ 1,996 patients were Illinois residents. (Houlihan Aff. ¶ 10.) Second, even if the Doctors regularly treated a substantial number of Illinois residents, such contact does not subject them to general jurisdiction. See Sabados, 882 N.E.2d at 128-29; see also Rogers v. Furlow, 699 F. Supp. 672, 676-77 (N.D.Ill. 1988) (defendant doctor and clinic were not subject to Illinois jurisdiction even though 10-12% of their patients were Illinois residents referred by Illinois doctors and defendants regularly presented seminars in Illinois). In Sabados, an Illinois patient traveled to Indiana to receive medical services from an Indiana clinic. The patient developed an injury related to her treatment and sued the clinic in Illinois state court. The Court found that the clinic had the following contacts: 1) it treated up to 1,500 Illinois patients a year; 2) the clinic listed a number of Illinois residents in its fund-raising database; 3) clinic advertisements appeared in the telephone Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 6 of 16 7 books of four Illinois cities, including plaintiff’s hometown and 4) the clinic had employed eight Illinois residents over the course of five years. These contacts, even aggregated, were insufficient for general jurisdiction under a due process analysis. Sabados, 882 N.E.2d at 127, see also Ballard v. Rawlins, 428 N.E.2d 532 (Ill. App. Ct. 1981) (finding no personal jurisdiction even though nonresident doctor called prescription into an Illinois pharmacy and plaintiff claimed doctor solicited her as a patient). Personal services rendered by physicians in their local office are not directed at any particular place. Id.; see also Rogers v. Furlow, 699 F. Supp. at 677 (doctors “treat people, not states, and therefore they are not invoking the protection of the laws of Illinois by treating residents of Illinois exclusively [in another state]”). “[A] plaintiff who travels out of state to seek personal assistance and then travels back to the forum state should expect to travel back to the state of service in order to lodge any related complaint.” Sabados, 882 N.E.2d at 127. The Doctors’ contacts with Illinois are even more tenuous than the defendants’ in Sabados and Rogers. Each of the Doctors is a resident and citizen of Indiana. (Thompkins Aff. ¶ 4; Houlihan Aff. ¶ 7.) Each practices exclusively in Indiana. (Id.) None of them have referral relationships with any entity in Illinois. (Thompkins Aff. ¶ 4; Houlihan Aff. ¶ 8.) Fewer than 2% of the 1,996 patients seen by the Doctors between 2004-2007 were Illinois residents. (Houlihan Aff. ¶ 10.) These Illinois patients traveled to Indiana to receive services from the Doctors in their Indiana office. (Houlihan Aff. ¶ 7; Thompkins Aff. ¶ 4.) The Doctors do not advertise in Illinois. (Houlihan Aff. ¶ 9.) None of the Doctors have engaged in widespread, continuous, or systemic contact with Illinois. It would violate due process for the Court to exercise general jurisdiction. Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 7 of 16 8 2. Illinois Cannot Assert Specific Jurisdiction Over the Doctors For specific jurisdiction, the Court must decide if a defendant “has purposefully established minimum contacts” with Illinois “and consider whether, by traditional standards, those minimum contacts would make personal jurisdiction reasonable and fair under the circumstances.” RAR, Inc, v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997). The Court has to determine if each defendant “should reasonably anticipate being haled into court” in the forum state. Burger King, supra, at 474. A defendant may have “fair warning” that it would be called to defend a suit in the forum state only if the defendant “purposefully avails itself of the privilege of conducting activities within the forum state thereby invoking the benefits and protection of the forum’s laws.” Id. at 477- 78. “An out-of-state party’s contract with an in-state party is alone not enough to establish the requisite minimum contacts.” RAR, Inc, 107 F.3d at 1277. “[S]pecific jurisdiction is not appropriate merely because a plaintiff’s cause of action arose out of the general relationship between the parties; rather the action must directly arise out of the specific contacts between the defendant and the forum state.” Id. at 1278 quoting Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (internal citations omitted) (emphasis original). There is no evidence that any of the Doctors purposefully established contacts with Illinois sufficient for specific jurisdiction. Plaintiffs’ single explicit allegation concerning Illinois is one lunch meeting between Woodrum and Thompkins at a Chicago restaurant. (Complaint, ¶ 13.) This meeting was held in Illinois at the request of Woodrum. (Thompkins Aff. ¶ 12.) Plaintiffs make no allegation that Thompkins had any other specific contact with Illinois. There is no allegation of contact with Illinois for Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 8 of 16 9 the other Doctors. Other than vague allegations of “making a contract substantially connected” with Illinois, “breach of fiduciary duty” and “tortious conduct,” in Illinois, plaintiffs fail to allege that any of the Doctors had any specific contacts with Illinois at all, let alone contacts that would subject them to the specific jurisdiction of this Court. (Complaint, ¶ 7.) There is no specific personal jurisdiction over the Doctors in Illinois for the matters raised in plaintiffs’ Complaint. B. This Court Should Dismiss this Matter for Improper Venue 1. No Substantial Events or Omissions Occurred in This Jurisdiction Improper venue is an independent reason for the Court to dismiss this case. Under 28 U.S.C. §1391(b), venue should lie either where the defendant resides or where substantial events or omissions occurred. Plaintiff asserts that venue is proper in this court because a “substantial part of the events or omissions giving rise to plaintiffs’ claims occurred in this district.” (Complaint, ¶ 7.) Plaintiff has the burden of establishing proper venue. Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 1969). Other than one meeting between Thompkins and Woodrum at a Chicago restaurant, plaintiffs do not allege that any specific events forming the basis of their action happened in Illinois. The executed contract between Lakeshore and WASD giving rise to this action – the Development Agreement– was signed in Indiana. (Houlihan Aff. ¶ 12; Thompkins Aff. ¶ 7.) The subject ASC is in Indiana. (Houlihan Aff. ¶ 5; Thompkins Aff. ¶ 3.) All other meetings between the members of Lakeshore and WASD took place in Indiana. (Houlihan Aff. ¶¶13-14; Thompkins Aff. ¶¶ 8-9.) The only Illinois aspect to this case is that one plaintiff, Woodrum, resides in Illinois. (Complaint, ¶ 2.) With the exception of Count IV (Fraudulent Misrepresentation), all of the counts in Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 9 of 16 10 the Complaint rest on alleged omissions by the Doctors. For example, in Count I (Breach of the Lakeshore OA), plaintiffs alleged that the Doctors breached the Lakeshore OA by: a) failing to distribute the Venture’s net cash flow on at least a quarterly basis to WASD for its pro rata or other equitable share; b) failing to distribute to WASD its pro rata or other equitable share of the proceeds of the Sale; … h) By otherwise failing to comply with the terms of the Lakeshore OA.” (Complaint, ¶ 23.) To the extent that plaintiffs’ allegations rely on failures to act by the Doctors, such omissions “could only take place where the [d]efendants are located.” Giordano v. City of Palm Bay, 2007 WL 4365341 *2 (N.D. Ill. December 12, 2007). All of the Doctors are Indiana citizens and practice exclusively in Indiana. (Houlihan Aff. ¶ 7; Thompkins Aff. ¶ 4.) Each of the alleged omissions could have only been an Indiana event. 2. Plaintiffs Fail to Plead Sufficient Allegations to Support Venue for Each Cause of Action Plaintiffs have failed to establish proper venue in this Court for each count of their complaint. “At least when the plaintiff asserts venue on a basis other than the defendants’ residence, the plaintiff generally must establish proper venue as to each separate cause of action.” Giordano, 2007 WL 4365341 at *2. Of plaintiffs’ eight causes of action, only one – the Count IV (Fraudulent Misrepresentation) - purports an Illinois connection and rests on the lunch meeting between Woodrum and Thompkins in Chicago. The remaining seven counts are predicated on (1) failures of the Doctors to act, which can only happen in Indiana, or (2) actions taken by the Doctors in Indiana. See Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 10 of 16 11 Giordano, supra. There is not even a prima facie basis for venue for seven out of eight counts in the Complaint. 3. Plaintiffs Have Waived Venue in this District Finally, the forum selection clause in the Settlement Agreement provides an additional basis to dismiss this case for improper venue. A lack of venue challenge, based upon a forum selection clause, is appropriately brought as a Rule 12 (b) (3) motion to dismiss. Continental Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 (7th Cir. 2003). A forum selection clause in “an enforceable contract is presumed valid and will be generally enforced.” AGA Shareholders, LLC v. CSK Auto, Inc., 467 F.Supp.2d 834, 843 (N.D. Ill. 2006). This is particularly true where the contractual language makes clear that a certain venue is mandatory and exclusive. Id. Plaintiffs’ reliance on alternative equitable and tort claims does not circumvent the basis of their case. Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) quoting Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 203 (3rd Cir. 1983), cert. denied (internal citations omitted) (“where the relationship between the parties is contractual, the pleading of alternative non-contractual theories of liability should not prevent enforcement of such a bargain as to the appropriate forum for litigation”) Hugel, as an individual, entered into a contract to join the Corporation of Lloyd’s, with a forum selection clause designating the courts of England. He was the President, Chairman, and owner of GCM and OMI. Hugel and GCM filed suit against Lloyd’s in Illinois District Court, alleging breach of contract, breach of fiduciary duty, invasion of privacy and tortious interference with business relationships, all arising out of disclosures Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 11 of 16 12 Lloyd’s allegedly made during a misconduct investigation. The Court dismissed the suit for improper venue based on the forum selection clause. Hugel, 999 F.2d at 211. Plaintiffs tried to circumvent the clause by arguing that 1) the suit does not arise out of the subject of the original contract, 2) Lloyd’s assurances of confidentiality constituted a separate contract, 3) tortious interference with a business relationship is a tort claim not covered by the forum selection clause, and 4) because only Hugel was a party to the original contract, GCM and OMI are not bound by the forum selection clause. Hugel, 999 F.2d at 209-10. The Court rejected each of these arguments, holding that the executed contract was the basis of all plaintiffs’ claims. “[If] Hugel were not a member of Lloyd’s, there would not have been an investigation.” Id. at 209. The investigation itself was intertwined with membership requirements under the contract such that oral promises made in the course of the investigation were not a separate contract. Id.; see also AGA Shareholders, LLC, 467 F.Supp.2d at 848 citing Omron Healthcare, Inc. v. Maclaren Exp. Ltd., 28 F.3d 600, 603 (7th Cir. 1994) (forum selection clause in master contract governs all later related contracts). Even though plaintiffs were alleging tort claims, the duty element of the tort stemmed from the contract and is governed by the forum selection clause. Hugel, 999 F.2d at 209. Finally, because GCM and OMI are closely related to Hugel - Hugel is an officer and owner of both companies - they are bound by the forum selection clause. Id. Here, all of plaintiffs’ allegations center on the ASC. Plaintiffs’ connection with the ASC stemmed from the Development Agreement. Any alleged promises or omissions by the Doctors to plaintiffs directly arose out of the relationship between the Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 12 of 16 13 parties created by the Development Agreement. The Settlement Agreement resolved all claims related to the Development Agreement: WASD and Lakeshore, for themselves, their partners, members, managers, representatives…generally release, covenant not to sue, and forever discharge WASD and Lakeshore and their partners, representatives, assigns, predecessors, successors…from any and all claims, demands, or causes of action related in any way to, or arising out of the Development Agreement, known or unknown, and any and all other past present and future. (Settlement Agreement, ¶ 2.) The Settlement Agreement designated Indiana state courts as an exclusive forum for all disputes: This Settlement Agreement shall be governed by, and construed in accordance with the laws of the State of Indiana. Any and all actions arising from this Settlement Agreement shall be brought in the appropriate Indiana state court and all parties agree to submit to the jurisdiction of the Indiana courts and waive any and all claims of forum non conveniens. (Settlement Agreement, ¶ 7.) The Doctors were members of Lakeshore. (Houlihan Aff. ¶ 6; Thompkins Aff. ¶ 5.) Woodrum is a partner of WASD. (Development Agreement, p. 7.) The Settlement Agreement specifically included the Doctors and Woodrum by stating that it applied to Lakeshore and WASD’s “partners, members, managers, [and] representatives.” (Settlement Agreement, ¶ 2.) Under Hugel, these individuals are closely related to the signatories. The Settlement Agreement, including the forum selection clause, governs the Doctors and Woodrum. Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 13 of 16 14 To defy the forum selection clause, plaintiffs carry the “heavy” burden of having to show that “the contractual forum will be so gravely difficult and inconvenient that the party challenging the clause will for all practical purposes be deprived his day in court.” AGA Shareholders, LLC, 467 F.Supp.2d at 843 quoting Heller Fin., Inc. v. Midwhey Powder Co, 883 F.2d 1286, 1290-91 (7th Cir. 1989) (internal citations omitted). Indiana state courts are a convenient forum for this suit. All defendants, including Lakeshore and REASC, are located in Indiana. (Houlihan Aff. ¶¶ 4, 6-7; Thompkins Aff. ¶¶ 2, 4.) The ASC and related records are in Indiana. (Houlihan Aff. ¶ 5; Thompkins Aff. ¶ 3.) Woodrum and other WASD personnel traveled to Indiana numerous times to carry out their duties under the Development Agreement. (Houlihan Aff. ¶ 13; Thompkins Aff. ¶ 8.) There is no reason why they cannot do so to prosecute a suit. WASD and Woodrum released all causes of action in this case by entering into the Settlement Agreement. To the extent they challenge the scope of the release, they still agreed to only bring suit in Indiana state courts. IV. CONCLUSION This Court should dismiss this matter as to the Doctors. The Court lacks jurisdiction over the Doctors and the Northern District Court of Illinois is an improper venue. Illinois has neither general nor specific jurisdiction over the Doctors. None of the Doctors engage in business or provide services in Illinois. The Doctors also have not established minimum contacts with Illinois so as to reasonably expect being haled into court in Illinois. Except for a single lunch meeting held in Chicago at the behest of Woodrum, none of the events constituting plaintiffs’ claims happened in Illinois. Out of plaintiffs’ eight separate causes of action, only one specifically includes an Illinois event Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 14 of 16 15 - and only as to one of the Doctors. Finally, plaintiffs have waived venue in this Court by agreeing to a mandatory forum selection clause designating Indiana state courts as the proper forum for disputes related to the issues identified in the Complaint. Plaintiffs should be held to their bargain. Respectfully submitted, PLEWS SHADLEY RACHER & BRAUN LLP /s/John H. Lloyd Attorneys for Defendants Stephen A. Studer (Illinois Atty. # 02761947) John H. Lloyd (Illinois Atty. #06231089) PLEWS SHADLEY RACHER & BRAUN LLP 53732 Generations Drive South Bend, Indiana 46635 Tel: (574) 273-1010 E-mail: jlloyd@psrb.com Jeffrey M. Monberg (Illinois Atty. #6270295) KRIEG DEVAULT LLP 33 N. LaSalle Street, Suite 2412 Chicago, IL 60615 Tel: (312) 423-9300 CERTIFICATE OF SERVICE I hereby certify that on June 13, 2008, a copy of the foregoing was electronically served upon the following via the CM/ECF system: Robert H. Lang, Esq. Karen E. Grossman, Esq. Holland & Knight LLP 131 S. Dearborn St., 30th Fl. Chicago, IL 60603 F. Joseph Jaskowiak HOEPPNER WAGNER & EVANS LLP 1000 East 80th Place – Suite 606S Merrillville, Indiana 46410 Case 1:08-cv-01721 Document 22 Filed 06/13/2008 Page 15 of 16 16 Cintra D. Bentley SEYFARTH SHAW LLP 131 South Dearborn Street – 2400 Chicago, Illinois 60605 /s/John H. 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