Robillard v. Berends , 371 Ill. App. 3d 10 ( 2007 )

No. 1-06-0407
ALAN T. ROBILLARD, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 05 MI 602137
)
SCOTT W. BERENDS, THOMAS E. )
PATTERSON, and the PATTERSON )
LAW FIRM, P.C., ) Honorable
) Sanjay Tailor,
Defendants-Appellants. ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
The plaintiff, Alan T. Robillard (Robillard), is a resident of the State of Massachusetts,
employed by Forensic Science Applications located in Vineyard Haven, Massachusetts, where he
works as a questioned document examiner, including forensic consulting and providing expert
advise and testimony in federal and state courts. The defendants Scott Berends and Thomas E.
Patterson are attorneys licensed to practice law in the State of Illinois and employed by
defendant, the Patterson Law Firm, P.C. (the Firm) located in Chicago, Illinois. The plaintiff was
granted a default judgment in Massachusetts against the defendants. The plaintiff then registered
the judgment here in Illinois under the Uniform Enforcement of Foreign Judgments Act (735
ILCS 5/12-650 et seq. (West 2004)), and subsequently served each defendant with a citation to
discover assets. The defendants moved to quash the registration of the foreign judgment,
claiming Massachusetts lacked personal jurisdiction over them. The circuit court denied the
defendants’ motion finding that jurisdiction in Massachusetts was proper. The defendants’
No. 1-06-0407
appeal, contending the circuit court erred in denying their motion to quash the registration of the
foreign judgment for lack of personal jurisdiction. We affirm.
Defendants admit that on January 14, 2005, Berends initiated contact with plaintiff by
telephoning him in Massachusetts requesting plaintiff303 Ill. App. 3d 711, 714
(1999); Khan v. Van Remmen, Inc., 325 Ill. App. 3d 49 (2001).
Defendants claim that plaintiff had the burden of proving that the trial court had
jurisdiction over defendants and that they failed to meet that burden and as a result the
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Massachusetts court lacked personal jurisdiction over them. Plaintiff contends that the
defendants’ contacts with the Commonwealth of Massachusetts constituted a transaction of
business and that these contacts were constitutionally sufficient for Massachusetts to assert
personal jurisdiction over defendants.
ANALYSIS
Under the doctrine of full faith and credit, the forum court will not rehear a case on its
merits because the judgment is res judicata. Sackett Enterprises, Inc. v. Staren, 211 Ill. App. 3d
997, 1001 (1991). However, the trial court may inquire into whether a sister state had subject
matter and personal jurisdiction in the matter. Sackett, 211 Ill. App. 3d at 1001.
In Sackett, this court stated:
"If this inquiry reveals a jurisdictional defect which would either
render the foreign judgment void according to the law of the
foreign state, or deprive the foreign court of jurisdiction over the
nonresident under the general constitutional standards of due
process the foreign judgment has no constitutional claim to full
faith and credit." Sackett, 211 Ill. App. 3d at 1001.
Whether Massachusetts courts can exercise personal jurisdiction over a defendant starts
with a two-part inquiry. Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389
N.E.2d 76, 79 (1979). First, we must determine whether jurisdiction is authorized under
Massachusetts’ long-arm statute. Second, we consider whether exercising jurisdiction in this
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case comports with federal constitutional due process requirements. The focus of the court is
whether there was some minimum contact with the Commonwealth that resulted from an
affirmative, intentional act of the defendants, such that it is fair and reasonable to require the
defendants to come into Massachusetts to defend the action. Good Hope, 378 Mass. at 7, 379
N.E.2d at 80.
The Massachusetts long-arm statute provides in part:
"A court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a cause of action in law or
equity arising from the person416 Mass. 763, 765, 767, 625 N.E.2d 549,
550, 554 (1994).
In this case, plaintiff contends that defendants transacted business in Massachusetts
within the meaning of section 3(a) of the Massachusetts long-arm statute, and plaintiff’s claim
arose from defendants’ transaction of that business. We agree.
The "transacting any business" clause in section 3 has been construed broadly. Tatro, 416
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Mass. at 767, 625 N.E.2d at 551. The Supreme Judicial Court of Massachusetts has held that the
purposeful and successful solicitation of business from residents of the Commonwealth, by a
defendant or its agent, will suffice to satisfy this requirement. In Tatro, a nonresident defendant
who solicited and obtained meeting and convention business from Massachusetts businesses and
maintained telephone and mail contact with them, transacted business in the Commonwealth, see
also Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir. 1983)(purposeful actions of law school
in mailing application information to applicant in Massachusetts and acceptance letter were
sufficient, without more, to constitute the transaction of business).
Massachusetts courts have also found that a defendant need not be physically present in a
Commonwealth in order to "transact business" in the Commonwealth. Workgroup Technology
Corporation v. MGM Grand Hotel, LLC, 246 F. Supp. 2d 102, 110 (D. Mass. 2003). Even just a
few acts on a defendant’s part can often suffice to satisfy the long-arm statuteWorkgroup, 246 F. Supp. 2d at 110. Actions such as telephone calls,
e-mails and faxes to a plaintiff in Massachusetts for the purpose of negotiating the terms of a
contract are sufficient to satisfy the "transacting business" requirement of section 3(a) when the
contacts are crucial to the formation of the contract in dispute as opposed to purely incidental
matters. Workgroup, 246 F. Supp. 2d at 110. See also Daynard v. Ness, Motley, Loadholt,
Richardson & Poole, P.A., 290 F.3d 42, 62 (1st Cir. 2002) (Massachusetts law professor hired as
expert witness by Mississippi law firm established personal jurisdiction over firm in suit for fees
because the firm transmitted facts and information into Massachusetts via telephone and mail and
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No. 1-06-0407
the professor performed his research and writing in Massachusetts).
Even an isolated "one-shot" transaction with little impact on the commerce of
Massachusetts may constitute the transaction of business. A-Connoisseur Transportation Corp.
v. Celebrity Coach, Inc., 742 F. Supp. 39, 42 (D. Mass. 1990); Haddad v. Taylor, 32 Mass. App.
Ct. 332, 335, 588 N.E.2d 1375, 1377 (1992) (nonresident agent, acting on behalf of principal,
"transacted business" in Commonwealth, even though agent was not physically present, where
agent negotiated for sale of land located in the Commonwealth, spoke on telephone with a
potential buyer located in the Commonwealth, telephoned and wrote to his attorney in the
Commonwealth, and hired a real estate broker in Commonwealth, and the cause of action arose
out of those negotiations).
In the case at bar, defendants transacted business in Massachusetts through telephone
calls to Robillard in Massachusetts for the purpose of negotiating an expert witness agreement;
the transmission of documents and information to Robillard for examination; consultation with
Robillard regarding his findings and opinions; supervision of Robillard’s preparation of a written
report; and the preparation and planning for Robillard’s appearance and testimony at trial. These
contacts were not "incidental" and were clearly sufficient to satisfy the "transacting business"
section of the Massachusetts long-arm statute. As in Daynard, defendants’ transmission of
documentary evidence into Massachusetts via e-mail for review by Robillard and for use in
preparing his expert report in Massachusetts constitutes evidence of direct contact with the forum
state. As in Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079 (1st Cir. 1973) defendants’
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No. 1-06-0407
supervision and direction of Robillard’s analysis and written report constituted evidence of
substantial contact with the forum state. As in Hahn, defendants’ contacts with Robillard were
neither random, isolated, nor incidental. The defendants in this case purposefully sought out
Robillard and successfully entered into a contract with him.
Defendants rely on numerous cases to support their position that their activities were
insufficient to satisfy the statutory requirements of section 3(a) of the Massachusetts’ long-arm
statute. These cases are factually distinguishable from the case at bar.
In "Automatic" Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass., 441, 280
N.E.2d 423 (1972), the court found insufficient contact to confer personal jurisdiction where the
defendants only contacts with the Commonwealth consisted of the affirmance of a contract for a
palletizing machine and making of partial payments pursuant to the contract through the mail.
"Automatic", 361 Mass. at 444, 280 N.E.2d at 425. In "Automatic", there is no evidence that the
defendant purposefully sought out the plaintiff, that it transmitted information to the plaintiff in
Massachusetts or supervised the plaintiff375 Mass. 149, 376 N.E.2d 548 (1978), the
court found defendants’ contacts with Massachusetts to be insufficient to constitute the
transaction of business. The defendants’ only contacts with Massachusetts were the placement of
an advertisement in a publication distributed in the Commonwealth, the receipt in Florida of a
telephone call from the plaintiff in Massachusetts in regard to the purchase of two marine
engines, the sending of correspondence to the plaintiff confirming the sale and the shipment of
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No. 1-06-0407
the marine engines to plaintiff in Massachusetts. Droukas, 375 Mass. at 154, 376 N.E.2d at 551.
In Droukas, the defendants’ initial contact with the plaintiff was the result of a random
advertisement and involved one isolated sale.
In Irma S. Mann Strategic Marketing, Inc. v. Innovatex Research & Development, Inc.,
1993 Mass. App. Div. 233 (1993), the court found the defendants’ contacts with Massachusetts
to be limited. Irma, 1993 Mass. App. Div. at 234. In Irma the defendant did not initiate the
original contact for marketing services between itself and the plaintiff; it did not actively
participate in the performance of the contract; and, unlike in the case at bar, it did not supervise
any aspect of the work done by the plaintiff.
In Lyle Richards International, Ltd. v. Ashworth, Inc., 132 F.3d 111 (1st Cir. 1997), the
court found the defendant’s contacts with Massachusetts to be incidental where there was no
requirement that performance of plaintiffRichards,
132 F.3d at 113.
Unlike the cases relied on by defendants, in this case, the defendants purposefully and
successfully sought out Robillard in Massachusetts. The defendants contemplated and expected
most of Robillard’s services to be performed in Massachusetts as they transmitted documents to
Massachusetts for analysis at Robillard’s lab. Defendants did not simply hire Robillard to testify
in Chicago, they hired him to analyze the documents, draft a report and prepare with them for
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No. 1-06-0407
trial. The majority of those services were in fact performed in Massachusetts and are the basis of
Robillard’s claim against defendant. Moreover, defendants actively supervised Robillard’s work
by reviewing his opinion and editing his expert report while Robillard was in Massachusetts. As
such, defendants clearly transacted business in Massachusetts under the long-arm statute and
jurisdiction over them was appropriate as the trial judge found. Thus, defendants’ transacted
business in Massachusetts within the meaning of the statute.
Federal due process requires that a "defendant ha[ve] sufficient 355 Ill. App. 3d 1107, 1112
(2005). To determine whether a court’s exercise of jurisdiction over a defendant satisfies due
process, we must consider: "(1) whether the non-resident defendant has minimum contacts within
the forum State such that he has fair warning that he may be required to defend himself there; (2)
whether the action arises out of the defendant258 Ill. App. 3d 47, 55 (1994).
First, we consider whether plaintiff’s claim arises out of the defendants’ contacts with
Massachusetts. In Highway Traffic Safety Associates, LLC v. Gomien & Harrop, No. 3-05-
0786, slip op. at 8-9 (October 17, 2006) a similar case was decided finding that a Maryland
resident’s claim arose out of the defendant’s contacts with the state of Maryland. " < "If a
defendants contacts with the forum state are related to the operative facts of the controversy, then
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an action will be deemed to have arisen from those contacts." [Citation.]< " Highway Traffic
Safety Associates, LLC., slip op. at 7, quoting MaryCLE, LLC v. First Choice Internet, Inc., 166
Md. App. 481, 504, 890 A.2d 818, 832 (2006). In a contract case, only the dealings between the
parties regarding the disputed contract are relevant to the question of whether a plaintiff’s claim
arises out of a defendants’ contacts with the forum state. Travelers Casualty & Surety Co. v.
Interclaim (Bermuda) Ltd., 304 F. Supp. 2d 1018 (N.D. Ill. 2004). In this case, the plaintiff
brought suit against defendants in Massachusetts for payment owed under the parties’ agreement
for plaintiff to provide an expert witness report for defendants’ use in another lawsuit and for the
plaintiff to come to Chicago to testify. Defendants contacted plaintiff in Massachusetts and
engaged in telephone, facsimile, postal mail and e-mail communications with plaintiff in
Massachusetts. In addition, defendants contemplated an on-going relationship with plaintiff in
Massachusetts. This claim directly relates to the defendants’ contacts with Massachusetts.
Therefore, the requirement for personal jurisdiction is met.
Second, we address whether the defendants had fair warning that it may be required to
defend themselves in Massachusetts. The "fair warning" requirement may be met by showing
that the defendants "purposefully availed themselves of the privilege of conducting activities
within the forum State, thereby invoking the benefits and protections of its laws." Pilipauskas,
258 Ill. App. 3d at 56. The quality and nature of the defendants’ contacts with Massachusetts are
critical to the question of purposeful availment. Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d
1283, 78 S. Ct. 1228 (1958).
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When a contract is at issue, courts have considered the following factors to determine the
question of purposeful availment: "(1) who initiated the transaction, (2) where the contract was
entered into, and (3) where the performance of the contract was to take place. [Citation.]"
Dilling v. Sergio, 263 Ill. App. 3d 191, 196 (1994). " < "The strongest factor that seems to have
emerged, however, is a determination of whether the defendant initiated the business relationship
in some way." < " Highway Traffic Safety Associates, LLC v. Gomien and Harrop, slip op. at 8,
quoting Potomac Design, Inc. v. Eurocal Trading, Inc., 839 F. Supp. 364, 370 (D. Md. 1993),
quoting Nueva Engineering, Inc. v. Accurate Electronics, Inc., 628 F. Supp. 953, 955 (D. Md.
1986)..
In this case, the defendants "reached out" into Massachusetts by initiating contact with
plaintiff by telephone to secure his services. Additionally, defendants reportedly telephoned
plaintiff in Massachusetts and sent numerous documents to Massachusetts for plaintiff to review
so he could prepare the requested documentation. Indeed, the defendants anticipated that
plaintiff would perform all of his work in Massachusetts with an exception of his trial testimony.
The defendants deliberately established contact and obligations with a Massachusetts resident.
" <[T]he Due Process Clause may not readily be wielded as a territorial shield to avoid interstate
obligations that have been voluntarily assumed.’ [Citation.]" Ruprecht Co. v. Sysco Food
Services of Seattle, Inc., 309 Ill. App. 3d 113, 120 (1999). Thus, we determine that the
defendants purposely availed themselves of the privileges of conducting business in
Massachusetts. See Ruprecht, 309 Ill. App. 3d at 113 (finding that a nonresident corporation
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No. 1-06-0407
purposefully directed activities in Illinois when a nonresident placed two orders with an Illinois
resident via fax and obtained information from the resident via telephone).
Third, we must determine whether Massachusetts’ exercise of personal jurisdiction over
the defendants was constitutionally reasonable. To determine what is reasonable, courts consider
several factors: "(1) the burden on the defendant of defending the action in the forum state; (2)
the forum stateBombliss, 355 Ill. App. 3d at 1115. The United States
Supreme Court has asserted that, once purposeful availment has been established, a defendant
must make a "compelling case" that it is unreasonable or unfair to require it to defend a suit out
of state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 85 L. Ed. 2d 528, 544, 105 S. Ct.
2174, 2185 (1985).
The defendants have not provided us with any compelling reasons to find that
Massachusett’s exercise of jurisdiction over them was constitutionally unreasonable or unfair. In
addition, the applicable factors weigh in favor of the plaintiff’s position. Massachusetts has an
interest in affording its citizens a forum for relief in breach of contract situations, as the plaintiff
has an interest in obtaining convenient relief. Furthermore, public policy supports
Massachusetts’ assertion of jurisdiction under this factual scenario. It is fairly routine in
litigation to engage expert witnesses who live in states other than the forum state of the litigation.
Entering into an agreement where the expert does most, if not all, of his work at his place of
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business reduces the costs of litigation for all parties. It would be unreasonable to deny such an
expert a forum in his home state to adjudicate disputes over payment for his services. Thus, we
find that Massachusetts properly asserted personal jurisdiction over the defendants in this case.
Based on the above analysis, we conclude that Massachusetts properly exercised personal
jurisdiction over the defendants. Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
McBride, P.J. and Garcia, J., concur.
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