Summary
reaffirming decision in Mopex I with respect to defendant Amex
Summary of this case from American Stock Exchange, LLC v. Mopex, Inc.Opinion
No. 02 Civ. 1656 (SAS).
April 4, 2002
Appearances:
For Plaintiffs: Bradford P. Lyerla, Esq., Wallenstein Wagner, Ltd., Chicago, Illinois.
For Defendants: Stuart I. Friedman, Esq., Andrew A. Wittenstein, Esq., Paul S. Grossman, Esq., Friedman, Wittenstein Hochman, a Professional Corporation, New York, New York.
William K. West, Esq., Howrey Simon Arnold White, Washington, D.C.
John J. Flood, Esq., National Association of Securities Dealers, Inc., Washington, D.C.
OPINION AND ORDER
I. INTRODUCTION
On March 5, 2002, this Court issued an Opinion dismissing all of the claims asserted by Mopex, Inc. and Realtimemutualfunds.com Co. (collectively "Mopex") against American Stock Exchange, LLC ("Amex") and Nathan Most ("Most") See Mopex, Inc. and Realtimemutualfunds.com Co. v. American Stock Exchange and Nathan Most, No. 02 Civ. 1656, 2002 WL 342522, at *12 (S.D.N.Y. Mar. 5, 2002) ("Mopex I"). Familiarity with that opinion is assumed, On March 18, 2002, Mopex moved for reconsideration pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure. See Notice of Mopex'[s] Motion to Reconsider This Court's Order Dismissing Mopex'[s] Claims That Were Transferred to This Court From the Northern District of Illinois; Mopex'[s] Memorandum of Law in Support of its Motion to Reconsider This Court's Order Dismissing Mopex'[s] Claims That Were Transferred to This Court From the Northern District of Illinois ("Pl. Recon. Mem."). This motion was granted. See 3/20/02 Order. For the reasons stated below, that opinion is partially amended but the result remains unchanged.
II. LEGAL STANDARD
A motion for reconsideration is governed by Local Rule 6.3 and is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 392 (S.D.N.Y. 2000) (quotation marks and citation omitted); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.") Alternatively, a motion for reconsideration may be granted to "correct a clear error or prevent manifest injustice." Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999).
Local Rule 6.3 "should be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001); see also In re Houbigat, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (a Local Rule 6.3 motion "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved"); Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (purpose of Local Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters").
III. DISCUSSION
This action was transferred here from the Northern District of Illinois (the "Illinois court") pursuant to 28 U.S.C. § 1404(a). See Mopex I, 2002 WL 342522, at *4. Generally, "when a case is transferred pursuant to 28 U.S.C. § 1404(a), the transferee court must apply the choice-of-law rules that the transferor court would have applied." id. However, "[w]hen the action could not have been maintained in the transferor court, the applicable law, including choice-of-law rules, is the state law of the transferee court." Id. In Mopex I, I found, first, that the Illinois court — the transferor court — would have dismissed Mopex's claims against Amex because Mopex should have asserted them as compulsory counterclaims in American Stock Exchange, LLC v. Mopex, Inc., No. 00 Civ. 5943 (SAS) (the "Patent Action"), an action already pending before this Court. See Mopex I, 2002 WL 342522, at *8. Second, I found that the Illinois court would have dismissed Mopex's claims against Most "without prejudice for failure to timely serve process." Id. at *9 Because I found that the Illinois court would have dismissed the claims against Amex and Most as not properly before it, I held that I was required to apply New York's statute of limitations, under which all of Mopex's claims were time-barred. See id. at *10-*12.
Mopex now argues that this Court erred when it found that the Illinois court would have dismissed the claims against Amex and Most. Each of these holdings will be reviewed in turn.
A. Claims Against Amex
In Mopex I, I held that Mopex's claims against Amex (the "trade secret claims") were "compulsory counterclaims" under Rule 13(a) of the Federal Rules of Civil Procedure and that, pursuant to N.Y.C.P.L.R. § 203(d), Mopex could have asserted those claims "as counterclaims in the Patent Action, regardless of whether the statute of limitations had run."Id. at *8 Thus, I found that "the Illinois court would have dismissed those claims as compulsory counterclaims that Mopex failed to assert in the Patent Action." Id.
As I noted in Mopex I, section 203(d) would have permitted Mopex to assert the otherwise time-barred trade secret claims as claims for equitable recoupment in the Patent Action. See id. at *7 Mopex argues that, because equitable recoupment only serves to "offse[t] any damages recovered by the plaintiff," it is inapplicable to the Patent Action where Amex seeks a declaratory judgment but no damages. Pl. Recon. Mem. at 5. If Mopex could obtain "no remedy" in the Patent Action, it contends, the Illinois court would not have dismissed its claims against Amex. See id. at 5-6.
Contrary to Mopex's assertion, Amex has requested monetary relief in the Patent Action. In addition to a declaratory judgment, the Complaint requests "costs and reasonable attorneys' fees" as well as "such further relief as the Court may deem appropriate." Complaint, Ex. A to Declaration of Stuart I. Friedman, counsel for Amex and Most, in Support of Plaintiff's Motion to Enjoin the Prosecution of the Substantially Identical Later-Filed Action in the United States District Court for the Northern District of Illinois, at 5; see also 3/25/02 Letter from Friedman to the Court ("3/25/02 Ltr."), at 3. Thus, Mopex's trade secret claims, if successful, could be used to offset any monetary relief that is awarded to Amex in the Patent Action. While this off-set may not afford Mopex all the relief it desires, I have already held that the Illinois court would have dismissed the claims against Amex even though "complete relief would not be available in the pending [Patent] action."Mopex I, 2002 WL 34522, at *18 n. 15.
This declaration was filed in the Patent Action.
In any event, there is New York case law indicating that section 203(d) applies to cases where plaintiff does not seek monetary damages. In Bloomfield v. Bloomfield, ___ N.Y.S.2d ___, 97 N.Y.2d 188, 2001 WL 1512095 (Nov. 27, 2001), the New York Court of Appeals held that, pursuant to section 203(d), defendant wife could assert otherwise time-barred claims for rescission of a prenuptial agreement where plaintiff husband sought no monetary damages. See id. at *2. The husband sought only a declaration that a prenuptial agreement barred the wife's claim for equitable distribution. See id. at *1. Cf. Farkas v. Farkas, No. 95 Civ. 8464, 1998 WL 3633, at *3 (S.D.N.Y. Jan. 7, 1998) (noting that recoupment does not simply allow "one transaction to be offset against another," but "permits a transaction which is made the subject of suit by a plaintiff to be examined in all its respects, and Judgment to be rendered that does justice in view of the one transaction as a whole.") (quoting Rochester Health Network, Inc. v. Rochester Hosp. Serv. Corp., 507 N.Y.S.2d 100, 101 (4th Dep't 1986)).
B. Claims Against Most
In Mopex I, I found that Most was not properly served within the statutory time for perfecting service and that there was no "good cause" for Mopex's delay. Id., 2002 WL 342522, at *9. Mopex now presents new evidence that Most was served within the extended time granted by this Court. See Pl. Recon. Mem. at 6-7. Nevertheless, Most continues to insist that he "has never been validly served." 3/25/02 Ltr. at 1. Consideration of this dispute requires a review of the procedural history of this action.
1. Relevant Procedural History
On October 25, 2001, the Illinois court signed an order transferring this action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a). See Mopex I, 2002 WL 342522, at *4. At that time, Most had not been personally served. See id. Most had filed a motion to dismiss for lack of personal jurisdiction and insufficient service of process, but the Illinois court had not ruled on that motion.See id. at *3.
Due to procedural complications, the case was not officially docketed in the Southern District of New York until March 2002. In the intervening time, however, the parties agreed that this case was related to the Patent Action, which was already pending before this Court. Accordingly, the case proceeded before me. See 12/14/01 Tr., Ex. B to Pl. Recon. Mem., at 4.
The case was assigned a docket number on March 5, 2002, the dateMopex I was issued. Due to an administrative delay, that case number was not officially recorded until March 9, 2002.
On November 29, 2001, two days before the expiration of time for service, Mopex sent a letter to this Court requesting leave for additional time to serve. See 11/28/01 Letter from Stephen R. Auten, counsel for Mopex, to the Court, Ex. A to Pl. Recon. Mem. At a conference held on December 14, 2001, I granted Mopex twenty days to serve Most.See 12/14/01 Tr. at 13. Between that conference and the day I issuedMopex I, neither party provided the Court with any indication that Most had in fact been served. Thus, I found that Most was not timely served.See Mopex I, 2002 WL 342522. at *9.
On March 19, 2002, the day Mopex moved for reconsideration, it provided the Court with proof of service on Most. See Summons and Proof of Service, Ex. C to Pl. Recon. Mem. It now appears that the Illinois District Court issued a summons on December 17, 2001, which was served on Most on December 26, 2001. See id. The summons indicates that the docket number assigned to the case is "[p]ending transfer to the Southern District of New York." Id.
2. Analysis
Most insists that service of a summons issued by the Illinois court was ineffective because the extension of time to serve was granted by this Court, the transferee court, rather than the Illinois court. See 3/25/02 Ltr. Under normal circumstances, Most would be correct. Where a plaintiff has failed to effect proper service as of the date of transfer, it is generally "obligated to effect service in the new forum." Buggs v. Ehrnschwender, 968 F.2d 1544, 1548 (2d Cir. 1992); see also Restrepo v. Colgate University, 149 F.R.D. 17, 19 (N.D.N Y 1993). The mere act of transfer will not cause previously unperfected personal jurisdiction to attach. See Michelson v. Merrill Lynch, Pierce, Fenner Smith, 709 F. Supp. 1279, 1288 (S.D.N.Y. 1989); see also Wilson v. St. Mary's Hosp., 822 F. Supp. 1450, 1451 (D. Minn. 1993). Rather, the defendant must "be properly served under the law in the transferee forum."Michelson, 709 F. Supp. at 1288; see also Wilson, 822 F. Supp. at 1451;Stewart Coach Indus., Inc. v. Moore, 512 F. Supp. 879, 883-84 (S.D. Ohio 1981).
Here, however, Mopex was ordered to serve Most in December 2001, when this case was "in limbo." 12/14/01 Tr. at 9-10. Despite the transfer order, the case was not officially docketed in this District and there was no civil docket number assigned to the action. While the parties agreed that proceedings could go forward in this Court, Mopex could not have obtained a summons from this Court. Thus, Mopex's only option was to request a new summons from the Northern District of Illinois — the only court where the action was docketed — and serve that summons upon Most. See 3/27/02 Letter from Bradford P. Lyerla, counsel for Mopex, to the Court ("3/27/02 Ltr.") at 1. Under these unusual circumstances, I find that Most was properly served. Accordingly, the earlier decision in Mopex I is amended and I now hold that the Illinois court would not have dismissed Mopex s claims against Most for failure to perfect service.
C. The Illinois Court's Jurisdiction Over Most
Most contends that the Illinois court would still have dismissed the claims against him for lack of personal jurisdiction. See Def. Opp. at 16-18. Under Illinois law, Mopex bears the burden of establishing a prima facie case of jurisdiction. See Steel Warehouse of Wisconsin, Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998). In determining whether Mopex has met its burden, this Court may receive and consider affidavits from both parties. See Turncock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987);Information Tech., Int'l, Inc. v. ITI of North Florida, Inc., No. 01 C 4668, 2001 WL 1516750, at *4 (N.D. Ill. Nov. 28, 2001). While the Court must resolve all factual disputes in the pleadings and affidavits in favor of Mopex, it must take as true any facts contained in Most's affidavit that remain unrefuted by Most. See Glass v. Kemper Corp., 930 F. Supp. 332, 337 (N.D. Ill. 1996), aff'd, 133 F.3d 999 (7th Cir. 1998) (citing Boese v. Paramount Pictures Corp., No. 93 C 5976, 1994 WL 484622, at *2 (M.D. Ill. Sept. 2, 1994)). Because Most submitted an affidavit containing jurisdictional facts and Mopex has submitted no affidavit in response, the following facts set forth in Most's affidavit are accepted as true. See Glass, 930 F. Supp. at 337; see also Cleary v. Phillip Morris, Inc., 726 N.E.2d 770, 776 (Ill.App.Ct. 2000) ("Well alleged facts in an affidavit regarding jurisdiction, which are not contradicted by counter affidavit, are taken as true notwithstanding the existence of contrary evidence in a the party's pleading.")
1. Jurisdictional Facts
Until January 1996, Most was senior vice president at Amex in charge of new product development. See Affidavit of Nathan Most ("Most Aff."), Ex. A to Def. Mem., ¶ 12; Am. Compl. ¶ 28. Most was never a shareholder of Amex or a member of its Board of Directors. See Most Aff. ¶ 13. While at Amex, his compensation was never directly linked to the introduction of new financial products on the Amex. See id. ¶ 12. During his tenure at Amex, he was a citizen and resident of New Jersey or New York. See id. ¶ 15.
Between 1991, and December 1995, Most traveled to Illinois approximately once a year in connection with his position at Amex. See id. ¶ 28. "For the most part, these trips involved meetings with the Options Clearing Corp. (the `OCC'), which is located in Chicago, for the purpose of discussing new products that were going to be traded on the Amex and that would be cleared by the OCC." Id. ¶ 28. All of these trips were on behalf of Amex and none of these trips involved Mopex, its representatives, or any of the allegations in the Complaint. See id.
While at Amex, Most attended two meeting with representatives of Mopex, both of which took place in New York. See id. ¶¶ 16, 17, 20, 21. He does not recall making any telephone calls to anyone in Illinois or sending any letters or faxes to anyone in Illinois in connection with these meetings. See id. ¶¶ 20, 21. He attests that all of his contacts with Mopex were on behalf of Amex and that he never had any personal dealings with Mopex or its representatives. See id. ¶ 23.
In January 1996, Most became the President and Chairman of iShares, Inc. (the "Company"). See Am. Compl. ¶ 30; Most Aff. ¶ 5. In 1999, Most also became the President and Chairman of the Board of The iShares Trust (the "Trust"). See Am. Compl. ¶ 32; Most Aff. ¶ 5. The Company and the Trust are what is known as "Exchange Traded Funds" ("ETFs"), consisting of a type of fund called iShares MSCI Index Funds ("iShares"). See Most Aff. ¶ 7. The Company is a Maryland Corporation with its principal place of business in California and the Trust is a business trust organized under the laws of Delaware, with its principal place of business in California. See id. ¶ 6. Barclays Global Fund Advisors ("BGFA"), a wholly controlled subsidiary of Barclays Global Investors, N.A. ("BGI"), acts as the investment advisor to the Trust and the Company. See Am. Compl. ¶¶ 4, 31, 33; Most Aff. ¶¶ 8, 9. BGFA makes all the investment decisions for both the Trust and the Company. See Most Aff. ¶ 3.
Barclays Bank, PLC ("Barclays"), a British entity, is the parent and/or control entity of BGI. See Am. Compl. ¶ 5.
Most's work as an officer and director of the Company and the Trust take up approximately ten percent of his time; the remainder is spent acting as a consultant on an "independent contractor" basis to the Hong Kong Stock Exchange. Id. ¶ 10. Most attests that he "never commingled [his] personal fund with the funds of the Trust or the Company" and that "in no way could the Trust or Company be said to be [his] `alter ego'." Most Aff ¶ 8. "As part of [his] overall investment strategy," he has "purchased, sold, or shorted shares in the Trust and/or the Company." Id. ¶ 8 n. 1. However, "[p]ursuant to an agreement, these transactions were inititated by [his] investment manager without [his] prior knowledge." Id.
Since January 1, 1996, Most has traveled to Illinois only twice. See id. ¶ 7. Both times, he was in Illinois to "mee[t] with representatives of the Chicago Board Options Exchange (the `CBOE') concerning the trading of shares in the Trust or the Company." Id.
Currently, Most is a citizen of California. See id. ¶ 4. He has never been a citizen or resident of Illinois. See id. ¶ 25. He has never owned real estate in Illinois, does not maintain a place of business in Illinois, has never had a phone number in Illinois, has no banking relationships within Illinois, and does not regularly conduct business in Illinois. See id. ¶¶ 24-25.
Most is an investor in a limited partnership that owns a storage company in Illinois and owns "a security which provides a minor amount of income in Illinois." Most Aff. ¶ 24.
2. Discussion
In a case based on diversity jurisdiction, a federal district court only has personal jurisdiction over a defendant "if a court of the state in which it sits would have such jurisdiction." RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997). Thus, the Illinois court would only have jurisdiction over Most if an Illinois state court could exercise personal jurisdiction over Most. When considering a challenge to personal jurisdiction, an Illinois court must examine the limits imposed by: (1) state statutory law; (2) state due process law; and (3) federal due process law. See id. at 1276; Robinson v. Sabis (R) Educ. Sys., Inc., No. 98 C 4251, 1999 WL 412642, at *3 (N.D. Ill. May 28, 1999); Information Tech., Int'l, 2001 WL 1516750, at *5 Under the Illinois long-arm statute, "an Illinois court `may . . . exercise jurisdiction on any basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.'" RAR, 107 F.3d at 1276 (quoting 735 Ill. Comp. Stat. 5/2-209(c)). "Because the Illinois statute authorizes personal jurisdiction to the constitutional limits, the three inquiries mentioned above collapse into two constitutional inquiries — one state and one federal." Id.; see also Glass, 930 F. Supp. at 337.
Under the Illinois Constitution, jurisdiction over a nonresident defendant is only appropriate where it is "fair, just, and reasonable to require [the] nonresident defendant to deferred 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." RAR, 107 F.3d at 1276 (quoting Rollins v. Ellwood, 565 N.E.2d 1302, 1316 (Ill. 1990)). Although the "Illinois Supreme Court has made clear that the Illinois due process guarantee is not necessarily co-extensive with federal due process protections," it has "given little guidance as to how state due process protection differs from federal protection in the context of personal jurisdiction." Id.; see also Clearclad Coatings, Inc. v. Xontal Ltd., No. 98 C 7199, 1999 WL 652030, at *16 (M.D. Ill. Aug. 20, 1999).
Under the Due Process Clause of the Fourteenth Amendment, a court may only assert personal jurisdiction over a nonresident defendant who has "certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945 (quotation marks omitted); see also RAR, 107 F.3d at 1277. The standard of "minimum contacts" sufficient to support jurisdiction depends on whether the plaintiff asserts "general jurisdiction" or "specific jurisdiction". RAR, 107 F.3d at 1277. "General jurisdiction" is "permitted only where the defendant has `continuous and systematic general business contacts' with the forum." Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). Because Mopex has never alleged that Most has systematic contacts with Illinois, it has waived any general jurisdiction argument. See id.
The Complaint claims that Most consented to personal jurisdiction in Illinois by removing this action to the federal district court, see Am. Compl. ¶ 12 but the Seventh Circuit has squarely rejected this contention, see Allen v. Ferguson, 791. F.2d 611, 614 (7th Cir. 1986).
"Specific jurisdiction refers to jurisdiction over a defendant in a suit `arising out of or related to the defendant's contacts with the forum'." Id. (quoting Helicopteros Nacionales de Colombia, 466 U.S. at 414 n. 8). Specific jurisdiction is appropriate under the Due Process Clause where the "defendant has purposely established minimum contacts within the forum State" and where, "by traditional standards, those contacts would make personal jurisdiction reasonable and fair under the circumstances." Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)). "Crucial to the minimum contacts analysis is a showing that the defendant should reasonably anticipate being haled into court [in the forum State]," because the defendant has "purposely avail[ed] itself of the privilege of conducting activities' there." Id. (quotingBurger King Corp., 471 U.S. at 474-75).
Mopex contends that Most's two trips to Illinois to negotiate the listing and trading of iShares on the CBOE subject him to personal jurisdiction in Illinois. See Pl. Opp. at 10. Id. Most insists that his activity during these trips (1) is protected by the fiduciary shield doctrine, and/or (2) does not rise to the level of "minimum contacts" required by due process. See Def. Mem. at 20 n. 10; Reply Memorandum of Law in Support of the Amex's and Nathan Most's Motion to Dismiss Mopex's Claims That are Being Transferred to This Court From the Northern District of Illinois ("Def. Repl.") at 7-8.
Mopex has not argued that Most's contacts with Illinois durinq his employment at Amex subject him to personal jurisdiction in Illinois.
Illinois courts have adopted the fiduciary shield doctrine as part of the "fairness required by Illinois due process principles." Glass, 930 F. Supp. at 340. Under this doctrine, a court may not exercise jurisdiction over a nonresident defendant "in a forum with which his only relevant contacts are acts performed not for his own behalf, but on behalf of his employer." Ace Novelty Co., Inc. v. Vijuk Equipment, Inc., No. 90 C 3116, 1991 WL 150191, at *5 (N.D. Ill. July 31, 1991) see also Netsky v. Fiedler, No. 00 C 4652, 2001 WL 521396, at *1 (N.D. Ill. May 15, 2001); System Software Assoc., Inc. v. Trapp, No. 95 C 3874, 1995 WL 506058, at *3 (N.D. Ill. Aug. 18, 1995) The rationale underlying this doctrine is that "it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer." Alpert v. Bertsch, 601 N.E.2d 1031, 1037 (Ill.App. St. 1992).
The fiduciary shield doctrine "is usually said to be discretionary or `equitable', rather than absolute [or] an entitlement." Rice v. Noca Biomedical Corp., 38 F.3d 909, 914 (7th Cir. 1994). To ensure that "equity mitigates in favor of application of the fiduciary shield," courts have generally limited the doctrine in three ways. Robinson, 1999 WL 412642, at *4. First, courts have held that the shield is removed if the individual's actions were motivated by his or her personal interests, as opposed to those of the company. See Netsky, 2001 WL 521396, at *1; see also Plastic Film Corp. of Am., Inc. v. Unipac, Inc., 128 F. Supp.2d 1143, 1147 (N.D. Ill. 2001) Second, they have not applied the doctrine where "the defendant is the alter ego of the entity for which he is a fiduciary." Clipp Designs, Inc. v. Tag Bags, Inc., 996 F. Supp. 766, 768 (N.D. Ill. 1998); see also Robinson, 1999 WL 412642, at *3 Third, some courts have held that the shield is removed where "the defendant was a director or officer who had discretion regarding whether the contacts occurred." Robinson, 1999 WL 412642, at *3 (stating that this limitation is "sometimes" applied and noting the disagreement among Illinois courts); compare Netsky, 2001 WL 521396, at *1 ("[T]he shield generally does not apply when the individual's actions are discretionary.") with Glass, 930 F. Supp. at 340-42 ("This court is not convinced that the Illinois Supreme Court . . . intended to have the discretion exception carved out of its fiduciary shield doctrine . . . .").
Mopex alleges specific jurisdiction based on two trips Most made to Illinois for the purpose of discussing stocks held by the Trust or the Company, with whom he was employed. Mopex has proffered no evidence that these trips served any other purpose. Nor does Mopex dispute Most's assertion that he was not an alter ego of the Trust or the Company. While Most admits to having held stock in the Trust and the Company on various occasions, there is no evidence that his financial interest in the Trust or the Company at the time he visited Illinois was large enough to infer a personal financial motivation. Compare Glass, 930 F. Supp. at 340-42 (applying fiduciary shield to vice president of company who owned a "very small amount" of the company's stock) with Netsky, 2001 WL 521396, at *1 (removing fiduciary shield where "senior management" had "possessed large holdings of shares, options and warrants in the company" and "personally invested large sums in the company"). Finally, while Most's position at the Trust and the Company — President and Chairman of the Board — presumably involved significant discretion, Mopex has offered no evidence that Most had discretion with regard to his two trips to Illinois. See Robinson, 1999 WL 412642, at *3 (applying fiduciary shield to general counsel and vice president of company where plaintiff proffered no evidence that they "had discretion about their contacts with the State of Illinois"); Glass, 930 F. Supp. at 340-42 (applying fiduciary shield to vice president of company where all activities in Illinois were "strictly job-related, and within the scope of [his] employment"); Plastic Film Corp. of Am., 128 F. Supp.2d at 1147 (applying fiduciary shield to nonresident defendant who was officer and director of company) Alpert, 601 N.E.2d at 1037 (applying fiduciary shield to nonresident defendants who were shareholders and directors of company where there was evidence that their contacts with Illinois were "made in their fiduciary capacity").
In any event, Most had entered into an agreement ceding control over those shareholdings to his investment advisor.
In summary, Most's two trips to Illinois were made on behalf of his employer and Mopex has offered no evidence that they served any other purpose. I therefore find that the Illinois court would have held, pursuant to the fiduciary shield doctrine, that it could not assert jurisdiction over Most based solely on this activity. Accordingly, the Illinois court would have dismissed the claims against Most for lack of personal jurisdiction.
IV. CONCLUSION
For the reasons set forth above, I amend my decision in Mopex I and hold that the Illinois court would have found that Most was properly served. However, because I affirm my decision with respect to Amex and find that the Illinois court lacked personal jurisdiction over Most, my conclusion that the Illinois court would have dismissed the claims against the defendants remains unchanged. The Clerk of the Court is directed to close the case.