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 plaintiff<s assistance as an expert witness

concerning an alleged forged contract in a lawsuit defendants were handling in Chicago.

Plaintiff was ultimately accepted by the defendants’ client pursuant to his rate schedule to serve

as their expert witness. The defendants transmitted documents to plaintiff in Massachusetts. On

January 18, 2005, defendants asked plaintiff to provide a preliminary report of his conclusions

after reviewing the documents. Plaintiff prepared a two-page, unsigned draft report that he

transmitted via e-mail on January 21, 2005, to Chicago Illinois, where he was to give live

testimony in the pending case.

       There are minor areas of dispute between the parties in the facts of this case. Defendants

assert that on January 21, 2005, plaintiff telephoned Berends to confirm that Berends had

received the draft report, and plaintiff was reminded that he would need to make travel

arrangements to testify in Chicago on January 24, 2005. Plaintiff contends that Berends called

him on January 24, 2005, to request that he finalize his report and testify that day. Plaintiff

further claims that Berends called him a second time on January 24, 2005, to inform him that his

testimony would not be needed until January 25, 2005. On January 25, plaintiff called

defendants from the airport and explained he could not be there at the designated time, and he

was directed not to come. Apparently, defendants’ client paid another expert who testified in the



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No. 1-06-0407


case. After the case was completed, plaintiff transmitted his signed report and invoice to

defendants.

       Plaintiff claims that he received certain documentary evidence relating to the lawsuit from

Berends, examined the evidence in his Massachusetts lab and reported his preliminary results to

Berends by telephone from Massachusetts. He further claims he was instructed to prepare a

written report of his findings. On January 21, 2005, Berends telephoned plaintiff in

Massachusetts and requested plaintiff to make arrangements to travel from Massachusetts to

Chicago to testify at a hearing on January 24, 2005. Plaintiff prepared a written "Examination of

Questioned Documents" in Massachusetts and sent it to Berends via e-mail on January 21, 2005.

Berends reviewed the report and discussed certain problems with the report. Plaintiff then

revised the report in Massachusetts and sent the corrected report to Berends via e-mail on

January 24, 2005. Plaintiff purchased an airline ticket for January 24, and on that date, Berends

telephoned plaintiff in Massachusetts to advise that the hearing was postponed to January 25,

2005, and requested plaintiff to be there at that time.

       On January 25, 2005, while in line to board the plane, plaintiff telephoned Berends and

was advised that his testimony was not necessary. On the evening of January 25, 2005, Berends

contacted plaintiff in Massachusetts and discussed the hearing and directed plaintiff to telephone

another expert, Jim Hayes, who was working with defendants concerning the testimony of the

opposing expert. On January 27, 2005, plaintiff telephoned Hayes from Massachusetts and

shortly thereafter Berends asked plaintiff if he would be interested in working with defendants on



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No. 1-06-0407


another matter. Plaintiff sent his bill and the defendants offered no explanation as to why they

failed to pay the bill.

        The plaintiff ultimately filed suit against the defendants in Dukes County, Massachusetts.

The defendants failed to appear in that suit. On August 3, 2005, a default judgment was entered

by the Edgartown district court of the Commonwealth of Massachusetts in the amount of

$3,207.96. Plaintiff filed this action to enforce the Massachusetts default judgment. Defendants

moved to quash the registration of the default judgment and the circuit court, municipal division,

found that Massachusetts properly exercised personal jurisdiction over the defendants and, thus,

denied the defendants’ motion.

        On appeal, the defendants renew its argument that the Massachusetts judgment is void

because the Massachusetts court lacked personal jurisdiction over them. Specifically, defendants

maintain they did not transact business in Massachusetts and did not have sufficient contacts with

the State. The plaintiff, however, contends that the defendants’ contacts with him in the

Commonwealth of Massachusetts constituted a transaction of business, and that these contacts

were constitutionally sufficient for Massachusetts to assert personal jurisdiction over them.

        The standard of review that applies to questions of law involving the registration of

foreign judgments is de novo. Thorson v. La Salle National Bank, 303 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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No. 1-06-0407


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 person<s

                       (a) transacting any business in this Commonwealth;

                       (b) contracting to supply services or things in this

                Commonwealth[.]" Mass. Gen. Laws ch. 223A, §§3(a)(b) (1986).

       While it is the plaintiff who has the burden of proving that the court has jurisdiction over

the defendants, the court must view the facts relevant to the jurisdictional issue in the light most

favorable to the plaintiff. Tatro v. Manor Care, Inc., 416 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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No. 1-06-0407


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 statute<s threshold for

transacting business. Workgroup, 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 plaintiff<s work.

       In Droukas v. Divers Training Academy, Inc., 375 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 plaintiff<s obligations as a purchasing agent take place in

Massachusetts. In that case the defendant reasonably assumed it would be doing business with

plaintiff in New Hampshire and did in fact conduct most of its business there. Lyle Richards,

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 <minimum contacts’ with

the forum state, such that maintaining an action there comports with <traditional notions of fair

play and substantial justice.’ [Citation.]" Bombliss v. Cornelsen, 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 defendant<s contacts with the forum State; and (3) whether it

is reasonable to require the defendant to litigate in the forum State. [Citations.] ?Pilipauskas v.

Yakel, 258 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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No. 1-06-0407


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 state<s interest in adjudicating the dispute; (3) the plaintiff<s interest in obtaining

effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient

resolution of the action; and (5) the shared interests of the several states in advancing

fundamental social policies. [Citation.]" Bombliss, 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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No. 1-06-0407


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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