dissenting:
The majority has found that “the agreement between Bright and Weis is a contract evincing a transaction involving commerce as contemplated by section 2 of the FAA” (402 Ill. App. 3d at 252) and that “the FAA preempts the Illinois Building and Construction Contract Act” (402 Ill. App. 3d at 255). The majority has also held that “forum non conveniens is an improper basis to deny defendant’s motion to stay the proceedings and compel arbitration” (402 Ill. App. 3d at 255). Although I agree that the FAA preempts the Illinois Building and Construction Contract Act, I do not agree with the finding that this agreement evinces a transaction involving interstate commerce. Because I would find that the FAA does not apply, I would not reach Bright’s argument that under the doctrine of forum non conveniens, this matter should be adjudicated in Illinois. 402 Ill. App. 3d at 255.
Nothing beyond “the multistate nature of one of the parties” (402 Ill. App. 3d at 252) demonstrates that the transaction “in fact” involved interstate commerce. See 402 Ill. App. 3d at 251. Further, nothing in Allied-Bruce suggests that the Supreme Court would find the interstate nature of the parties sufficient to hold that a transaction “in fact” involves interstate commerce. The Allied-Bruce court wrote that “[i]n addition to the multistate nature of Terminix and Allied-Bruce, the termite-treating and house-repairing material used by Allied-Bruce in its (allegedly inadequate) efforts to carry out the terms of the Plan, came from outside Alabama.” (Emphasis added.) Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 282, 130 L. Ed. 2d 753, 769, 115 S. Ct. 834, 843 (1995). The majority does not find that the materials “in fact” moved interstate, only that the corporation selling product intrastate is an out-of-state corporation. 402 Ill. App. 3d at 251.
The majority, therefore, relies only on the interstate nature of the parties for its finding that “the agreement *** is a contract evincing a transaction involving commerce.” 402 Ill. App. 3d at 252. However, the federal court has, since Allied-Bruce, found that the interstate nature of the parties is not sufficient to find that a contract involves interstate commerce. In Cecala v. Moore, 982 F. Supp. 609, 611-12 (N.D. Ill. 1997), the district court held that the FAA did not apply because the contract in question did not evince a transaction involving interstate commerce. There, the seller of real estate was located outside Illinois, but there was no evidence that transactions incident to the sale took place outside Illinois. See also Becker v. Amoco Pipeline Co., No. 89 C 1732 (N.D. Ill. September 25, 1989) (mem. op.) (“the language of section 2 means that the transaction which is the subject of the contract containing the arbitration provision must itself involve interstate commerce. It is not enough that one party’s business in general involves interstate activity”).
I would also note that Katzenbach is distinguishable because, although “ ‘insignificant when compared with the total foodstuffs moving in commerce’ ” (402 Ill. App. 3d at 253, quoting Katzenbach v. McClung, 379 U.S. 294, 300-01, 13 L. Ed. 2d 290, 296, 85 S. Ct. 377, 382 (1964)) some of the food supplied to Ollie’s Barbecue was “from out-of-state” (402 Ill. App. 3d at 253). None of the materials supplied to Bright were from out-of-state.
I would hold that the contract does not involve interstate commerce and, therefore, that the FAA does not apply. Accordingly, I dissent.