Craig DEHMLOW, Plaintiff-Appellant, v. AUSTIN FIREWORKS, Defendant-Appellee.
No. 91-1566.
United States Court of Appeals, Seventh Circuit.
May 7, 1992.
As Amended May 7, 1992.
963 F.2d 941
Argued Nov. 8, 1991.
In addition to the anomalous result it produces in this unusual case, the majority‘s opinion has a number of defects on its own terms. For example, the majority admits that the explicitly prospective language of sections 402(b) and 109(c) suggests retroactivity for the rest of the Act, but finds that language “not sufficiently probative of congressional intent.” Ante at 933. At the same time, the majority also admits that the legislative history is generally opaque. Ante at 934. Although I agree that section 402(b) is clearly surplusage, there is no reason to treat section 109(c) similarly. Given the general lack of information, we should give effect to the only direction Congress has provided: if section 109 is to apply prospectively, the rest of the Act is retroactive. See Stender v. Lucky Stores, Inc., 780 F.Supp. 1302, 1303 (N.D.Cal.1992) (plain language of Act supports retroactivity).
I also believe that the majority errs when it asserts that, among the provisions relevant to this litigation, only section 102, which provides for compensatory and punitive damages under Title VII, “is even arguably applicable under Bradley.” Ante at 938. Although section 101 is phrased as a substantive ban on discrimination, its effect is to make the damage provisions of
Whether we consider the facts of this case or the language of the Act, Patterson should not apply here, and the opinion in Mozee II should be revised in accordance with the law applied before Patterson was decided. Through a mechanical application of principles that are ill-fitting here, the majority has succeeded in applying rules of law not relied upon at the time of the discriminatory acts, not recognized when the lawsuit was brought and not in force now. This is substantially unjust to the plaintiffs and I respectfully dissent.
Timothy D. McMahon and Erica Nan Long (argued), Wiedner & McAuliffe, Chicago, Ill., for plaintiff-appellant.
Dinah L. Archambeault and Neil T. Goltermann (argued), Spesia & Ayers, Joliet, Ill., for defendant-appellee.
Before CUMMINGS and RIPPLE, Circuit Judges, and CRABB, Chief District Judge.*
Craig Dehmlow, an Illinois resident, was seriously injured in Barrington, Illinois, when a firework sold by defendant Austin Fireworks (“Austin“) improperly exploded. Austin, a Kansas corporation, manufactured and distributed fireworks including the allegedly defective firework to a Wisconsin corporation for the stated purpose of displaying the fireworks in Illinois and other Midwestern states. On appeal, the question presented is whether Austin had minimum contacts with Illinois such that Illinois courts may constitutionally exercise personal jurisdiction over Austin. The district court held not, but we disagree.
I.
Plaintiff Craig Dehmlow was severely injured during a 1988 Fourth-of-July fireworks display at Barrington High School in Barrington, Illinois.1 Dehmlow, a Carpentersville, Illinois, resident, had been hired for the Barrington fireworks display as a fireworks “shooter” by Bartolotta Fireworks, Inc., a Wisconsin Corporation. While employed as such, Dehmlow sustained severe and permanent injuries and disfigurement when one of the fireworks manufactured and distributed by defendant Austin improperly detonated (Appellant Br. 8).
Dehmlow filed a products liability claim against Austin in the Circuit Court of Cook County in order to recover damages for his personal injury. Dehmlow invoked the jurisdiction of the Illinois courts under the “tortious act” provision of the Illinois long-arm statute,
As a basis for resolving the personal jurisdiction issue in federal district court, Dehmlow submitted the following information. Defendant Austin Fireworks is incorporated in Kansas, and has its principal place of business in that state. Austin imports, assembles, and sells fireworks and conducts fireworks displays for cities and governmental entities. Austin advertises its fireworks in national publications and has never restricted its sales to particular states. Among its clients, Austin identified twelve regular Illinois customers. In 1988 and 1989 Austin sold fireworks to Nostalgia Pyrotechnics, Gemini Fireworks, Stars and Stripes, and Traditional American—all Illinois businesses. In 1987, 1988, and 1989, Austin conducted fireworks displays for the Village of Streator in Streator, Illinois. Austin signed contracts with Streator, under which Austin agreed to install, set up, display, operate, and remove all equipment necessary for the displays. One of Austin‘s Kansas employees travelled to Illinois to conduct the display and Austin employed Illinois residents to assist with those displays.
In 1988, after many negotiations over the telephone, Austin travelled to Chicago to discuss putting on Chicago‘s Fourth-of-July fireworks display with an official from the Mayor‘s Office of Special Events for the City of Chicago. Solely as a result of the City‘s late notice of contract, Austin was unable to perform Chicago‘s fireworks display. However, in 1989, Austin sold $35,458.55 of fireworks equipment for the City of Chicago‘s August 1989 Venetian Night fireworks display. This sale is believed to be Austin‘s largest sale in 1989. Austin helped the City of Chicago plan the display, delivered the fireworks equipment to Chicago, ordered additional shipments of fireworks to Navy Pier, and hired a driver to return the equipment to Kansas. Paul Austin, President of Austin Fireworks, attended Venetian Night to solicit additional business.
Austin sold the allegedly defective firework that injured Dehmlow to Bartolotta Fireworks, Inc. (“Bartolotta“), located in Genesee Depot, Wisconsin, approximately 40 miles north of the Illinois-Wisconsin border. Bartolotta manufactures fireworks and puts on fireworks displays in Illinois and other midwestern states. Bartolotta‘s president, Sam Bartolotta, told Austin president Paul Austin that Bartolotta intended to transport some of Austin‘s fireworks to Illinois for fireworks displays.
In a memorandum opinion, the district court dismissed Dehmlow‘s case for lack of personal jurisdiction based on World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Dehmlow filed a motion to vacate the district court‘s judgment and to transfer the action to the United States District Court, District of Kansas. However, Dehmlow‘s motion was denied.2 On appeal, Dehmlow challenges the trial court‘s determination that defendant‘s Fourteenth Amendment right to due process of law prohibits Illinois courts from exercising personal jurisdiction over the defendant.3
A.
In order to determine the scope of a federal district court‘s personal jurisdiction in a diversity case, this Court examines state law governing personal jurisdiction. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir.1990). When resolving the question of state court jurisdiction over a defendant, a court must make two inquiries: 1) whether a state statute grants personal jurisdiction over the defendant and 2) whether such jurisdiction is within constitutional bounds. Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 665 (7th Cir.1986). The first inquiry is wholly unnecessary in the case of many modern state statutes which include catch-all provisions that grant to state courts jurisdiction over all matters in which the state may constitutionally assert jurisdiction. See, e.g.,
Under the Due Process Clause, a state court may exercise personal jurisdiction over a nonresident defendant if, given the contacts with the forum state, that exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). This Court‘s analysis begins with the fair play and substantial justice standard—the only standard agreed upon by a majority of Supreme Court Justices in the Court‘s most recent adjudication involving personal jurisdiction. Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (Part II.B, opinion of the Court). Several factors inform the fairness of a state court‘s exercise of jurisdiction over a defendant. Those factors include:
“the burden on the defendant, the interests of the forum State, and the plaintiff‘s interest in obtaining relief. It must also weigh in its determination ‘the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.‘”
Id. at 113, 107 S.Ct. at 1033 (quoting World-Wide Volkswagen v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564). Upon weighing these considerations in the case before us, it is clear that haling defendant into an Illinois court would be both fair and reasonable.
The burden defendant faces in adjudicating its case in Illinois is not a heavy one. Unlike Asahi, in the present case long-arm jurisdiction does not extend beyond national boundaries and the defendant does not have to defend itself in a foreign nation‘s judicial system. The journey from Kansas to Illinois is not an onerous one for Austin, whose employees have travelled that route for business purposes several times in the recent past.
Furthermore, both Dehmlow and the State of Illinois have significant interests in adjudicating the case in Illinois. Dehmlow, a citizen of Illinois, has claimed that the
Finally, the interstate judicial system‘s interest in resolving the case efficiently is served by adjudicating the claim at the situs of Dehmlow‘s accident since his employer, Bartolotta Fireworks, the purchaser of the allegedly defective fireworks, resides only 40-50 miles north of Illinois.
Because of the slight burden on the defendant and the significant interests of the plaintiff and the State of Illinois, Illinois’ exercise of personal jurisdiction over the defendant conforms with general notions of fairness.
B.
The reasonableness of jurisdiction not only rests on the equitable concerns addressed in part A, but also on the defendant‘s relation to the forum state. In determining whether jurisdiction is proper, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum state.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). That requirement is met if the defendant “purposefully avails himself of the privilege of conducting activities within the forum state.” Jacobs/Kahan & Co. v. Marsh, 740 F.2d 587, 592 (7th Cir.1984) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)). The defendant‘s conduct in relation to the forum state, not unilateral actions of the plaintiff, determine jurisdiction.
In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, the Supreme Court stated that “[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 297-298, 100 S.Ct. at 567. The Supreme Court reiterated its prior statement on this issue in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 2182 (1985). This Circuit has repeatedly endorsed the “stream of commerce theory” and has resolved cases on the basis of it. See Mason v. Lli Luigi & Franco Dal Maschio, 832 F.2d 383, 386 (7th Cir.1987) (holding that Illinois courts had personal jurisdiction over Italian company whose machine caused personal injury in Illinois and reaffirming this Circuit‘s belief in the continued validity of Gray v. American Radiator & Standard Sanitary Corp., supra, after Asahi); Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 667 (7th Cir.1986) (granting to Wisconsin courts personal jurisdiction over a Missouri fireworks manufacturer which sold fireworks that caused personal injury in Wisconsin even though defendant sold those fireworks to a Minnesota resident), certiorari denied, 479 U.S. 1092, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987); Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120 (7th Cir.1983) (permitting Wisconsin courts to exercise personal jurisdiction over Hong Kong flannel shirt manufacturer whose product caused personal injury in Wisconsin), certiorari denied, 465 U.S. 1024, 104 S.Ct. 1277, 1278, 79 L.Ed.2d 682 (1984). However, the Supreme Court‘s most recent opinion casts some doubt on the future viability of the stream of commerce theory. In Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, a divided
Under the stream of commerce theory Dehmlow‘s case is resolved on his behalf by noting that Austin sold fireworks to Bartolotta with the knowledge that its fireworks would reach Illinois consumers in the stream of commerce.5 Because the Supreme Court established the stream of commerce theory, and a majority of the Court has not yet rejected it, we consider that theory to be determinative. We may not depart from Court precedent on the basis of a belief that present Supreme Court Justices would not readily agree with past Court decisions. Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 109 S.Ct. 1917, 1921-1922, 104 L.Ed.2d 526 (1989). Moreover, fairness commends the application of the stream of commerce theory. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-474, 105 S.Ct. 2174, 2182-83 (explaining that a state has a manifest interest in providing its residents with a convenient forum for redress of injuries, that the Due Process Clause is not a territorial shield to enable defendants to avoid interstate obligations, and that modern transportation and communication have decreased the burden to a nonresident defendant in a state in which it has some economic activity).
Although this case is being decided on the basis of the more permissive stream of commerce theory, in recognition of the recent split of Supreme Court authority on this issue, we also address Dehmlow‘s contention that the facts of his case satisfy even the more stringent minimum contacts test set forth in Justice O‘Connor‘s plurality opinion in Asahi. Under her view, due process requires “an action of the defendant purposefully directed toward the forum State (italics in original).” Asahi, 480 U.S. at 112, 107 S.Ct. at 1032 (plurality opinion). This standard rejects the notion that “[t]he placement of a product into the stream of commerce, without more” constitutes “an act of the defendant purposefully directed toward the forum state.” Id. Instead, a defendant must have “an intent or purpose to serve the market in the forum State,” which may be demonstrated by additional conduct of the defendant. Id.
In this case Austin purposefully directed its sale of fireworks toward Illinois and its actions evinced its intent to serve the market for fireworks in Illinois. First, Austin‘s President was directly informed that some of the fireworks it sold to Bartolotta were for use in particular fireworks displays in Illinois.
Second, Austin‘s additional contacts with Illinois reveal that company‘s intent to serve the market for fireworks in Illinois.6 At the time of Dehmlow‘s injury, Austin had already displayed fireworks in 1987 and 1988 for the City of Streator, Illinois, pursuant to written contracts between Austin and Streator. Moreover, in 1988 Austin had actively solicited business from the City of Chicago and was only unable to conduct fireworks displays for Chicago because of the late notice of contract. Austin‘s 1988 communications with
Under the Fourteenth Amendment a defendant may not be subject to binding judgments of a forum state court to which it has no meaningful contacts, ties or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-472, 105 S.Ct. 2174, 2181-82. But if a defendant has directed its conduct toward serving a state‘s market, it may not be heard to complain that it could not have foreseen being haled into that state‘s courts.
III.
Under the Illinois Business Corporation Act of 1983, a foreign corporation which “transacts business” in Illinois without obtaining a certificate of authority to do so is amenable to service of process through the Secretary of State.
Even if Austin had not transacted business in Illinois, the Illinois Code of Civil Procedure permits personal service of process outside the state upon “any person who is subject to the jurisdiction of the courts of this state.”
IV.
The facts of this case establish adequate minimum contacts such that the exercise of personal jurisdiction over the defendant in Illinois is consistent with fair play and substantial justice. Moreover, defendant transacted business in Illinois such that service of process was appropriate. Therefore, the judgment of the district court is reversed and the case is remanded to the district court for adjudication of the merits.
Judge Cummings’ thoughtful opinion for the court certainly reaches the correct result and sets forth, in scholarly fashion, the unfortunate ambiguity created by Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). I write separately because I believe that the court‘s use of this ambiguity as the matrix of its analysis unnecessarily complicates the key point upon which our decision must rest. With respect to the transaction that underlies this cause of action, the defendant clearly had sufficient contacts, from both a quantitative and qualitative point of view, to make it fundamentally fair to require it to answer for its conduct in Illinois.
It is important to note that, under the so-called “stream of commerce” theory approach or under “the more stringent minimum contacts test,” ante at 947, of the Asahi plurality, the nature of the defendant‘s relationship with the forum is of prime importance. While the so-called “stream of commerce” approach permits this factor to be considered “in light of other relevant factors,” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980), the burden on the defendant, a burden assessed by weighing its contacts with the forum, is always “a primary concern.” Id.
Here, the defendant‘s contacts with Illinois are clearly sufficient. Austin sold fireworks to Bartolotta with the knowledge that its fireworks would reach Illinois for particular displays and thus purposefully directed its business activity with respect to these fireworks toward Illinois. On this crucial factor, our holding appropriately rests.
The court also notes, ante at n. 6, that the defendant‘s other activity in Illinois is relevant for the limited purpose of establishing that it purposefully directed its activity toward Illinois. However, only activity contemporaneous or antecedent to the incident at issue ought to be considered in this regard.
On this basis, I join the judgment of the court.