Bell v. Don Prudhomme Racing, Inc.

Filed 11/5/10 NO. 4-10-0123

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JOHN BELL, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
DON PRUDHOMME RACING, INC., ) No. 09L240
Defendant-Appellee. )
) Honorable
) Michael Q. Jones,
) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In November 2009, plaintiff, John Bell, filed a com-

plaint for retaliatory discharge against defendant, Don Prudhomme

Racing, Inc., his former employer. The next month, defendant

filed a motion to dismiss the action for lack of personal juris-

diction. After a January 2010 hearing, the trial court granted

defendant's motion to dismiss.

Plaintiff appeals, asserting the trial court erred by

finding it lacked personal jurisdiction over defendant. We

reverse and remand with directions.

I. BACKGROUND

Plaintiff's November 2009 complaint alleged he was a

resident of Champaign County, Illinois, and defendant was a
California corporation doing business in Champaign County. In

February 2001, defendant hired plaintiff as a marketing and

hospitality assistant coordinator, and plaintiff performed all of

the terms, conditions, and requirements of his position in a

satisfactory manner. On or around October 27, 2004, plaintiff

was injured on the job and reported the injury to his employer.

During the week of December 12, 2004, defendant terminated

plaintiff's employment. Plaintiff asserted defendant's termina-

tion of his employment was in retaliation for his reporting the

work-related injury and subsequently filing a workers' compensa-

tion claim.

Defendant filed a motion to dismiss for lack of per-

sonal jurisdiction, asserting no contract was signed in Illinois

and no tortious act took place here. In support of its motion,

defendant attached the affidavit of Edward L. Allum, Jr., defen-

dant's general manager. Allum stated defendant's main office was

located in Vista, California, and it has another facility in

Brownsburg, Indiana. Defendant did not have an office in Illi-

nois. From about February 1 through November 30, each year, an

entire crew, which would have included plaintiff, was on the road

traveling from racing event to racing event all over the country.

Defendant attended two racing events in Illinois that lasted five

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to six days. One was in Will County and the other in Madison

County. Outside of those two events, defendant did not have

contact with Illinois.

In January 2010, plaintiff filed a response to defen-

dant's motion to dismiss, asserting Illinois had jurisdiction

under the Workers' Compensation Act. See 820 ILCS 305/1(b)(2)

(West 2008). Plaintiff also argued the parties' employment

contract was created and carried out in substantial connection

with Illinois. In support of his position, plaintiff attached

his own affidavit.

In his affidavit, plaintiff stated he was an Illinois

resident and received multiple telephone calls at his residence

from defendant's acting manager, Cory Watkins. Watkins offered

him employment with defendant via a telephone call while plain-

tiff was in Illinois, and plaintiff accepted employment in

Illinois. Defendant mailed plaintiff an employment package to

his Illinois residence, which plaintiff completed and returned to

defendant via Federal Express from his residence. Defendant

employed plaintiff from 2001 to 2004. As part of his employment,

plaintiff maintained, repaired, and stored a semitrailer at his

residence, which he used to transport defendant's equipment to

various races across the nation. Each year of his employment, he

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drove the semitrailer to and performed his regular job duties at

three races in Illinois. Moreover, during his employment,

plaintiff was based out of his Illinois residence and received

work assignments from defendant's employees by telephone at his

residence. Last, plaintiff was at his residence when he received

the call from defendant terminating his employment.

Defendant filed a response, asserting (1) the Illinois

Workers' Compensation Act did not apply to this case, (2) defen-

dant hired plaintiff in California, (3) plaintiff performed the

majority of his duties in other states, and (4) no tortious act

took place in Illinois. Defendant did acknowledge a third racing

event took place in Illinois when defendant was employed, and

that event took place in Cook County. Defendant also attached

the affidavit of Robert E. Craig, defendant's mobile marketing

unit manager from 1999 to 2007, and a supplemental affidavit by

Allum.

In his affidavit, Craig stated he interviewed plaintiff

for a position with defendant in Topeka, Kansas, in 2000. In

December 2000, Craig telephoned plaintiff and informed him

defendant would offer him a job if all of his paperwork and tests

were completed satisfactorily. Craig further told plaintiff he

would not be an employee of defendant until plaintiff (1) was at

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the shop in California; (2) interviewed by Don Prudhomme; and (3)

completed the employment paperwork, commercial driver's license

record report, background check, drug test, and driving test.

Defendant hired plaintiff for a support position for the trans-

portation, assembly, and onsite staffing of a mobile marketing

unit operated by defendant for a smokeless tobacco company at all

national racing events during the drag-racing season. Defen-

dant's driving duties required him to transport a semitrailer (1)

to and from racing events all around the country, (2) to defen-

dant's facilities in California and Indiana, and (3) to and from

any other third-party agencies for such things as retrofitting,

redesign, and maintenance. Defendant did not give plaintiff a

written offer of employment. In December 2004, Craig, who was in

Florida at the time, terminated plaintiff's employment with

defendant by telephone. After that telephone call, plaintiff

filed a workers' compensation claim, alleging an injury that took

place in Nevada.

To his supplemental affidavit, Allum attached numerous

documents, which included the following: (1) Allum's memorandum

describing plaintiff's duties for 2003; (2) a schematic showing

the 2004 tour schedule; (3) the 2004 tour schedule followed by

plaintiff, including the mileage between sites; (4) a January 22,

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2001, receipt for the airline ticket purchased by defendant for

plaintiff's air travel from Champaign to San Diego, California;

(5) a receipt for a hotel room in Vista, California, for plain-

tiff for lodging in January 2001; (6) plaintiff's original W-4

form; (7) a "personal file" document completed by plaintiff in

California on January 25, 2001; and (8) a copy of the payroll

register showing plaintiff's salary beginning with the January

23, 2001, through February 5, 2001, pay period. Allum also

stated that, excluding driving time, plaintiff only spent 15 days

in Illinois during the 2004 season. Additionally, defendant did

not allow plaintiff to perform maintenance or repair work on any

vehicle on defendant's behalf. Last, if a vehicle was stored at

plaintiff's residence, it was for plaintiff's personal conve-

nience. If a vehicle needed to be stored for any lengthy period

of time, it was to be stored at the Indiana facility.

On January 26, 2010, the trial court held a hearing on

defendant's motion to dismiss. At the hearing, the parties'

attorneys argued the motion based on the materials presented with

their respective memoranda. The court did not hear any evidence.

At the conclusion of the arguments, the court granted defendant's

motion to dismiss, finding (1) the employment contract was not

created in Illinois and (2) a tortious act did not take place in

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Illinois.

On February 11, 2010, plaintiff filed a notice of

appeal from the dismissal in compliance with Supreme Court Rule

303 (Official Reports Advance Sheet No. 15 (July 16, 2008), R.

303, eff. May 30, 2008), and thus this court has jurisdiction

under Supreme Court Rule 301 (155 Ill. 2d R. 301).

II. ANALYSIS

On appeal, plaintiff challenges the trial court's

finding it lacked personal jurisdiction over defendant.

The plaintiff bears the burden of establishing a basis

for personal jurisdiction over the defendant. Knaus v. Guidry,

389 Ill. App. 3d 804, 813, 906 N.E.2d 644, 652 (2009). Once the

plaintiff meets that burden, the burden then shifts to the

defendant to demonstrate why the assertion of jurisdiction would

be unreasonable. Flanders v. California Coastal Communities,

Inc., 356 Ill. App. 3d 1113, 1117, 828 N.E.2d 793, 797 (2005).

In determining whether a particular defendant falls subject to

the jurisdiction of this state, the court must first decide

whether the plaintiff "established a prima facie case of juris-

diction through the untraversed pleadings, documents, and affida-

vits." Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652. In

making that decision, the court must also accept as true any

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facts alleged in the defendant's affidavits unless the plain-

tiff's affidavits contradicted them, in which case the facts in

the plaintiff's affidavits prevail. Keller v. Henderson, 359

Ill. App. 3d 605, 611, 834 N.E.2d 930, 934 (2005). "If jurisdic-

tional facts remain in controversy, then the court must conduct a

hearing to resolve those disputes." Knaus, 389 Ill. App. 3d at

813, 906 N.E.2d at 652. Where, as in this case, the trial court

decides the matter on documentary evidence alone, we review that

decision de novo. Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at

652.

Illinois' long-arm statute governs the ability of

Illinois courts to exercise jurisdiction over nonresidents.

Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652. Plaintiff

cites the traditional two-step analysis for determining personal

jurisdiction, which first considered whether jurisdiction was

proper under the long-arm statute's specific language and then

whether the exercise of jurisdiction complied with due-process

principles. Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652.

However, the long-arm statute now contains a provision that

permits an Illinois court to "exercise jurisdiction on any other

basis now or hereafter permitted by the Illinois Constitution and

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

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(West 2008). Thus, "'if the contacts between a defendant and

Illinois are sufficient to satisfy both federal and state due[-]

process concerns, the requirements of Illinois' long-arm statute

have been met, and no other inquiry is necessary.'" Knaus, 389

Ill. App. 3d at 814, 906 N.E.2d at 653, quoting Kostal v. Pinkus

Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 387, 827

N.E.2d 1031, 1036 (2005). Accordingly, a court's consideration

of whether the defendant performed any of the acts enumerated in

the long-arm statute is now "'wholly unnecessary.'" Kostal, 357

Ill. App. 3d at 387, 827 N.E.2d at 1036, quoting Dehmlow v.

Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992).

Additionally, we note "the due[-]process protections

arising from the United States and Illinois Constitutions are not

identical and must be analyzed separately." Knaus, 389 Ill. App.

3d at 814, 906 N.E.2d at 653. Thus, our personal-jurisdiction

analysis will focus only on whether plaintiff has demonstrated

both the federal and Illinois due-process requirements have been

met in this case. See Keller, 359 Ill. App. 3d at 612, 834

N.E.2d at 935.

A. Federal Due Process

"To satisfy federal due[-]process requirements, a

nonresident defendant must have sufficient minimum contacts with

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the forum state so that the exercise of jurisdiction does not

offend '"traditional notions of fair play and substantial jus-

tice." [Citation.]'" Compass Environmental, Inc. v. Polu Kai

Services, L.L.C., 379 Ill. App. 3d 549, 557-58, 882 N.E.2d 1149,

1158 (2008), quoting International Shoe Co. v. Washington, 326

U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945).

"Thus, our analysis must focus on two factors: (1) the defen-

dant's contacts with Illinois and (2) the fairness or reasonable-

ness of exercising personal jurisdiction over the defendant."

W.R. Grace & Co. v. CSR Ltd., 279 Ill. App. 3d 1043, 1047, 666

N.E.2d 8, 10 (1996).

1. Minimum Contacts

The "minimum contacts" required for personal jurisdic-

tion differ depending on the type of jurisdiction sought.

Keller, 359 Ill. App. 3d at 613, 834 N.E.2d at 936. Under the

federal due-process clause, jurisdiction over a nonresident

defendant may be based upon "'general' or 'specific' jurisdic-

tion." Knaus, 389 Ill. App. 3d at 814, 906 N.E.2d at 653. The

difference in the two types of jurisdiction has been explained as

follows:

"While 'general jurisdiction,' for personal

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 jurisdiction purposes, applies to suits nei-

ther arising out of nor related to a nonresi-

dent defendant's contacts with the forum, and

is permitted only where the defendant has

continuous and systematic general business

contacts with the forum, 'specific jurisdic-

tion' refers to personal jurisdiction in a

suit arising out of or related to a defen-

dant's contacts with the forum." Borden

Chemicals & Plastics, L.P. v. Zehnder, 312

Ill. App. 3d 35, 41, 726 N.E.2d 73, 78-79

(2000).

In this case, plaintiff asserts Illinois has both general and

specific personal jurisdiction over defendant.

a. General Jurisdiction

As stated, for a court to obtain general jurisdiction

over a nonresident defendant, the defendant must have had "con-

tinuous and systematic general business contacts with the forum."

Zehnder, 312 Ill. App. 3d at 41, 726 N.E.2d at 78-79. That

threshold is high. Tamburo v. Dworkin, 601 F.3d 693, 701 (7th

Cir. 2010). The defendant's "contacts must be sufficiently

extensive and pervasive to approximate physical presence."

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Tamburo, 601 F.3d at 701. Moreover, "it has been generally

recognized that the casual presence of the corporate agent or

even his conduct of single or isolated items of activities in a

state in the corporation's behalf are not enough to subject it to

suit on causes of action unconnected with the activities there."

International Shoe Co., 326 U.S. at 317, 90 L. Ed. at 102-03, 66

S. Ct. at 159. In determining whether general jurisdiction

exists, federal courts have examined the following factors:

"(1) whether defendants maintain offices or

employees in Illinois; (2) whether defendants

send agents into Illinois to conduct busi-

ness; (3) whether defendants have designated

an agent for service of process in Illinois;

(4) whether defendants advertise or solicit

business in Illinois; and (5) the extent to

which defendants conduct business in Illi-

nois." Richter v. INSTAR Enterprises Inter-

national, Inc., 594 F. Supp. 2d 1000, 1006

(N.D. Ill. 2009).

While this court is not bound by the decisions of the lower

federal courts (Hinterlong v. Baldwin, 308 Ill. App. 3d 441, 452,

720 N.E.2d 315, 323 (1999)), we agree with the federal court's

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listing of the factors suggested by the United States Supreme

Court in Helicopteros Nacionales de Colombia, S. A. v. Hall, 466

U.S. 408, 416, 80 L. Ed. 2d 404, 412, 104 S. Ct. 1868, 1873

(1984).

In this case, plaintiff's affidavit and defendant's

uncontradicted affidavits show defendant did not maintain an

office in Illinois and only had its employees in Illinois for

three races, each of which lasted five to six days. Moreover,

plaintiff does not allege defendant (1) had an agent for service

of process in Illinois or (2) advertised or solicited business in

Illinois. Additionally, while plaintiff was employed, defendant

had a crew, including plaintiff, traveling across the country

from event to event from February 1 to November 30 each year, of

which 18 days at most were spent in Illinois. Thus, defendant

did not conduct much business in Illinois.

Plaintiff cites no authority that employing a resident

of a state and giving the employee work assignments in his home

state is more than casual presence in that State. Especially

when the employee is not in that home state for nine plus months

of the year. Defendant's limited contacts with Illinois are not

near physical presence in this state.

Accordingly, we find plaintiff failed to state a prima

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facie case of general personal jurisdiction as such jurisdiction

does not comport with federal due process.

b. Specific Jurisdiction

Plaintiff also contends Illinois has specific personal

jurisdiction over defendant.

With specific jurisdiction, a nonresident defendant has

minimum contacts with the forum state when "the defendant has

'purposefully directed' his activities at residents of the forum,

[citation], and the litigation results from alleged injuries that

'arise out of or relate to' those activities, [citation]."

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d

528, 541, 105 S. Ct. 2174, 2182 (1985). Regarding tort actions,

the state in which the injury occurs is the state in which the

tort occurs, and one who commits a tort in a state that is not

its resident state should still be amenable to suit there.

Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club

Ltd. Partnership, 34 F.3d 410, 412 (7th Cir. 1994), citing Calder

v. Jones, 465 U.S. 783, 790, 79 L. Ed. 2d 804, 812-13, 104 S. Ct.

1482, 1487 (1984) (holding the state where the victim of the

defendant's defamation lived had jurisdiction over the victim's

defamation suit). Moreover, "[t]he Seventh Circuit has repeat-

edly held that tortfeasors must expect to be haled into Illinois

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courts for torts where the injury took place there." ABN AMRO,

Inc. v. Capital International Ltd., 595 F. Supp. 2d 805, 828

(N.D. Ill. 2008), citing Janmark, Inc. v. Reidy, 132 F.3d 1200,

1202 (7th Cir. 1997).

Here, plaintiff has alleged the tort of retaliatory

discharge, which has the following elements: (1) the employer

discharged the plaintiff, (2) the discharge was in retaliation

for the plaintiff's activities, and (3) the discharge violated a

clear mandate of public policy. Webber v. Wight & Co., 368 Ill.

App. 3d 1007, 1021, 858 N.E.2d 579, 592 (2006). In the employ-

ment context, "discharge" means "the release, dismissal, or

termination of an employee." Welsh v. Commonwealth Edison Co.,

306 Ill. App. 3d 148, 153, 713 N.E.2d 679, 683 (1999). "[O]ur

supreme court has not expanded the tort of retaliatory discharge

to encompass any behavior other than actual termination of

employment." Welsh, 306 Ill. App. 3d at 153, 713 N.E.2d at 683.

In this case, the facts are uncontested that defen-

dant's agent was in Florida when he telephoned plaintiff, who was

at his Illinois residence, and told plaintiff he was no longer

employed. Defendant's affidavits do not state where its agents

made the decision to terminate plaintiff. Based on the aforemen-

tioned facts, plaintiff asserts his injury occurred in Illinois

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because his discharge was not final and effective until defendant

communicated it to him. Plaintiff contends the termination of an

employee is analogous to contract formation where the contract is

not formed until the acceptance is communicated to the party

making the offer. Conversely, defendant contends the discharge

occurred in California because the prominent action in discharg-

ing an employee is the determination the employee will no longer

have employment with the company. Neither party cites any case

law regarding where an injury occurs with the tort of retaliatory

discharge. This issue appears to be a matter of first impression

in Illinois.

While courts have not specifically addressed the place

of injury for a retaliatory-discharge action in the context of

specific personal jurisdiction, the issue also arises in analyz-

ing choice of law. For such an analysis, the most-significant-

relationship test is used. Safeco Insurance Co. v. Jelen, 381

Ill. App. 3d 576, 579, 886 N.E.2d 555, 558 (2008). Under that

test, courts consider, inter alia, where the injury occurred and

where the conduct causing the injury occurred. Safeco, 381 Ill.

App. 3d at 580, 886 N.E.2d at 558. Illinois courts have not

addressed where the injury occurred in a retaliatory-discharge

action in the context of choice of law, and thus we look to case

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law from other jurisdictions. See Kostal, 357 Ill. App. 3d at

395, 827 N.E.2d at 1043 (noting that, while not binding, deci-

sions from other jurisdictions constitute persuasive authority

and are entitled to respect).

The Seventh Circuit analyzed the location of the injury

in a retaliatory-discharge action where the defendant's world

headquarters was located in Illinois and the plaintiff, who was a

Virginia resident at the time, worked at a plant in Alabama.

French v. Beatrice Foods Co., 854 F.2d 964, 965 (7th Cir. 1988).

The court rejected the plaintiff's argument his injury occurred

at the defendant's headquarters where he was informed two months

before his termination "there would be no other position for him"

and concluded "[t]he place of injury (the loss of [the plain-

tiff]'s job) was Alabama." French, 854 F.2d at 965-66.

The Fourth Circuit has addressed the location of the

injury in a wrongful-discharge suit and found the plaintiff's

injury was his termination, which occurred in Maryland because

that was where plaintiff had his office and where his dismissal

was communicated to him. Milton v. IIT Research Institute, 138

F.3d 519, 522 (4th Cir. 1998).

In Ashmore v. Northeast Petroleum Division of Cargill,

Inc., 843 F. Supp. 759, 773 (D. Me. 1994), the plaintiff worked

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out of an office in Maine, traveled to several other states in

the area for work, and met with his supervisors in several

states. Defendant had headquarters in Massachusetts and that is

where plaintiff was told his employment was terminated. Ashmore,

843 F. Supp. at 773. With regard to plaintiff's wrongful termi-

nation case, the court found the place the injury occurred was

Massachusetts, where Ashmore's employment was terminated.

Ashmore, 843 F. Supp. at 774.

The aforementioned cases focus on where the plaintiff

was located at the time of termination and not where the

defendant made the decision to terminate the plaintiff. The

decision to terminate the employee is the conduct that caused the

injury, the location of which is a separate consideration. Here,

plaintiff was at his residence in Illinois when he received word

of his termination. Accordingly, we agree with plaintiff that

his injury occurred in Illinois. Moreover, we note it was

foreseeable plaintiff would receive the call in Illinois as the

racing season was over and plaintiff resided in Illinois. Thus,

defendant should have "reasonably anticipate[d] being haled into

court" in Illinois. World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 297, 62 L. Ed. 2d 490, 501, 100 S. Ct. 559, 567 (1980).

Since the tort occurred in Illinois, we find plaintiff

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has stated minimum contacts for establishing specific personal

jurisdiction.

2. Reasonableness

In addition to establishing defendant's minimum

contacts with Illinois, plaintiff had to show the reasonableness

of Illinois exercising personal jurisdiction over defendant to

comply with federal due process. See W.R. Grace & Co., 279 Ill.

App. 3d at 1047, 666 N.E.2d at 10. When determining the

reasonableness of requiring a nonresident defendant to litigate

in the forum State, courts consider the following: (1) the

burden on the defendant; (2) the forum State's interest in

resolving the dispute; (3) the plaintiff's interest in obtaining

relief; and (4) the interest of several States, including the

forum State, in the efficient judicial resolution of the dispute

and the advancement of substantive social policies. Zazove v.

Pelikan, Inc., 326 Ill. App. 3d 798, 808, 761 N.E.2d 256, 264

(2001), citing Asahi Metal Industry Co. v. Superior Court of

California, 480 U.S. 102, 112-15, 94 L. Ed. 2d 92, 104-06, 107 S.

Ct. 1026, 1032-33 (1987).

Here, the burden on defendant is not significant as

defendant already travels to Illinois for two races and has an

office in neighboring Indiana. Moreover, plaintiff was an

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Illinois resident, performed some of his work for defendant in

Illinois, and asserts his termination was in violation of the

public policy of Illinois as set forth in the Workers'

Compensation Act (820 ILCS 305/1 through 30 (West 2008)). Thus,

Illinois has an interest in the resolution of this suit.

Plaintiff sought relief in his home state, from which he was

based when he was not on the road and where he received word of

his termination. As stated, plaintiff has alleged it is the

public policy of Illinois that is at issue in this case. Since

plaintiff is an Illinois resident and Illinois has a significant

interest in the lawsuit, personal jurisdiction in Illinois is

reasonable.

B. Illinois Due Process

Last, personal jurisdiction over defendant must comport

with the due-process provision of the Illinois Constitution.

Under that provision, a court may exercise jurisdiction "only

when it is fair, just, and reasonable to require a nonresident

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." Rollins

v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990).

Here, defendant hired an Illinois resident,

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communicated with plaintiff at his Illinois residence, and had

defendant work in Illinois for around 15 days a year. Moreover,

plaintiff has raised a retaliatory-discharge claim, for which we

have found the injury occurred in Illinois, and plaintiff's

complaint alleges a violation of Illinois public policy.

Additionally, plaintiff filed his workers' compensation claim in

Illinois. Thus, plaintiff's complaint and affidavit have

provided sufficient facts showing defendant's acts affected

Illinois' interests, and thus personal jurisdiction over

defendant is fair, just, and reasonable.

Since specific personal jurisdiction over defendant in

this case comports with both federal and Illinois due process,

plaintiff has stated a prima facie case. While defendant has

contested some of the facts asserted by plaintiff, the facts

relied on by this court in finding specific personal jurisdiction

are not contested by defendant. Thus, an evidentiary hearing is

not warranted, and the trial court has personal jurisdiction over

defendant. Accordingly, the trial court erred by dismissing

plaintiff's cause of action.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

dismissal of plaintiff's retaliatory-discharge complaint and

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remand for further proceedings.

Reversed and remanded with directions.

MYERSCOUGH, P.J., and STEIGMANN, J., concur.

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