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THIRD DIVISION
FILED: June 30, 2004

No. 1-03-2219

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The Plaintiffs, Matthew Haubner, personal representative for the estate of Robert Haubner,deceased, and Noralee Dawn Rockwell, executor of the estate of Susan Miller, deceased, appeal froman order of the circuit court granting a motion to quash service for lack of in personam jurisdictionin favor of the defendants, Abercrombie & Kent Ltd. (Uganda) d/b/a A&K Uganda (hereinafter"A&K Uganda"), Abercrombie & Kent Travel, Ltd., d/b/a A&K Travel Kenya (hereinafter "A&KKenya") and Abercrombie & Kent Group Holdings SA (Luxembourg) (hereinafter "A&KLuxembourg") (collectively "the foreign A&K defendants"). On appeal, the plaintiffs contend thatthe circuit court erred in failing to assert in personam jurisdiction over the foreign A&K defendantsunder sections 2-209(a)(1) and (b)(4) of the Code of Civil Procedure (the Code). 735 ILCS 5/2-209(a)(1) and (b)(4) (West 2000). For the reasons which follow, we affirm in part, reverse in partand remand for further proceedings.

On March 1, 1999, Haubner and Rockwell were abducted from their tent and murdered bysuspected Interahamwe rebels while vacationing at the Gorilla Forest Camp in the BwindiImpenetrable Forest National Park, Uganda. Probate proceedings were initiated in respect to bothdecedents in the circuit court of Multnomah County, Oregon.

The case at bar was initiated on May 11, 2000, as a wrongful death and survival action in thecircuit court of Cook County against Abercrombie & Kent International, Inc. (hereinafter "A&KInt'l"), Abercrombie & Kent Overseas, Ltd. (hereinafter "A&K Overseas") and Abercrombie & KentTravel, Inc. (hereinafter "A&K Travel") (collectively "the Illinois A&K defendants"). The complaintalleged that the Illinois A&K defendants owned and operated the Gorilla Forest Camp where thedecedents were lodging. The complaint further alleged that the Illinois A&K defendants werenegligent in failing to warn the decedents about various acts of civil unrest and armed violenceoccurring along the Ugandan border and in failing to provide adequate security at the Gorilla ForestCamp.

On July 14, 2000, the Illinois A&K defendants filed a motion to transfer the cause to Du PageCounty on grounds of lack of venue and forum non conveniens. The motion to transfer containedan affidavit from Alistair Ballantine, the chairman of A&K Int'l., which averred that each of theIllinois A&K defendants' offices and sole places of business were in Oak Brook, Du Page County,Illinois.

On February 23, 2001, the plaintiffs were granted leave to amend their complaint to add theforeign A&K defendants. The complaint collectively referred to both the foreign and Illinois A&Kdefendants as "A&K." Similar to the initial complaint, the amended complaint alleged that "A&K"was an Illinois corporation which owned and operated the Gorilla Forest Camp, and that "A&K"negligently failed to warn and protect the decedents.

On February 22, 2002, A&K Luxembourg filed a request to admit and a notice of removalof the cause to the United States District Court for the Northern District of Illinois based on thedoctrine of fraudulent joinder. The request to admit, which was filed before the notice of removal,asked the plaintiffs to admit that the amount in controversy did not exceed $75,000. On June 6,2002, the district court remanded the matter back to the circuit court over the objection of the Illinoisand foreign A&K defendants.

On August 23, 2002, the foreign A&K defendants filed a motion to quash service of theamended complaint and summons, arguing that the circuit court lacked in personam jurisdiction. Attached to the motion were affidavits from corporate officers of A&K Luxembourg, A&K Ugandaand Abercrombie & Kent Ltd., (Nairobi) (hereinafter "A&K Nairobi"). Sabine Perrier, of A&KLuxembourg, averred that A&K Luxembourg was a corporation organized under the laws of theGrand Duchy of Luxembourg with its principal place of business and sole office in Luxembourg. A&K Luxembourg operated as a holding company and in that capacity owned an unspecified numberof shares of the Illinois A&K defendants. A&K Luxembourg also shared one common director withA&K Int'l and A&K Travel.

Peter Ngori, the managing director of A&K Nairobi, averred the following. A&K Nairobi,whose principal place of business and sole office was located in Kenya, was a retail tour operatorand was primarily owned by A&K Luxembourg. A&K Nairobi was the majority shareholder of theentity known as A&K Kenya before the sale and dissolution of the later in June 1999. A&K Nairobiwas incorrectly served with the amended complaint under the name A&K Kenya, and was submittingNgori's affidavit in support of the foreign A&K defendants' motion to quash. A&K Kenya hadoperated as a retail travel agency with its sole place of business in Kenya. In July 1998, anindependent African safari guide had contacted A&K Kenya for assistance in securing certainpermits and arrangements for the decedents' trip. A&K Kenya subsequently worked with A&KUganda to obtain the requested permits and accommodations for the decedents' vacation into theBwindi Impenetrable Forest National Park and their lodging at the Gorilla Forest Camp.

Patrick Shah, the general manager of A&K Uganda, averred that A&K Uganda's principalplace of business and sole office was located in Uganda, where the corporation organized andarranged various safaris and tours, and that A&K Luxembourg held a majority ownership interestin A&K Uganda. Employees of A&K Uganda would occasionally communicate with A&K Int'l viae-mail or telephone regarding safaris and tours organized by the two corporations and, in March1998, Shah personally visited the offices of A&K Int'l in Illinois. Shah further averred that A&KUganda had worked with A&K Kenya to arrange certain aspects of the decedents' travelarrangements within Africa.

Following the circuit court's allowance of limited discovery pursuant to Supreme Court Rule201(l) (Official Reports Advance Sheet No. 8 (May 17, 2002), R. 201(l), eff. July 1, 2002), theplaintiffs served interrogatories upon the foreign A&K defendants. A&K Nairobi answered theinterrogatories addressed to A&K Kenya, under objection, and only on behalf of A&K Nairobi. Theanswers revealed, inter alia, that A&K Uganda and A&K Nairobi derived 30% and 35%,respectively, of their business from the Illinois A&K defendants. A&K Luxembourg also answeredthat its board members communicated with the board members of both A&K Int'l and A&K Travelin A&K Luxembourg's capacity as a holding company.

On February 28, 2003, the plaintiffs responded to the foreign A&K defendants' motion toquash, arguing that jurisdiction was proper under sections 2-209(a)(1) and (b)(4) of the Code. 735ILCS 5/2-209(a)(1) and (b)(4) (West 2000). Attached to their response, the plaintiffs providedseveral affidavits and "A&K" marketing or promotional materials. An affidavit from RobertMcLaurin, which was originally submitted to the district court in support of the plaintiffs' motionto remand, averred that he and his wife were friends of the decedents and had accompanied them onthe trip to the Gorilla Forest Camp. McLaurin stated that once he returned from Africa he had aconversation with Ballantine, who agreed to refund $4,765 to McLaurin on behalf of "A&K." Another document attached to the response, authored by Ballantine, stated that the refund providedto McLaurin by A&K Int'l "was merely to facilitate the refund given to Mr. McLaurin from A&KUganda."

The marketing and promotional materials attached to the plaintiffs' response mainly consistedof several print copies of pages from the "Abercrombie & Kent" (A&K) website. One page tracedthe history of A&K from its beginnings as a small specialized travel firm based in Kenya, to itsexpansion "beyond the African continent" with offices in London and Oak Brook, Illinois, and itsevolution into "a highly specialized, international, integrated group of companies." Another A&Kweb page contained a press release dated September 7, 1999. The press release, which originatedfrom Oak Brook, Illinois, extolled A&K's naming as the world's best safari outfitter of 1999 beforestating that, "The U.S. headquarters for Abercrombie & Kent International, Inc. is located in OakBrook, Illinois."

Following a hearing, the circuit court granted the foreign A&K defendants' motion to quashand dismissed the foreign A&K defendants for lack of in personam jurisdiction. The circuit courtsubsequently granted the foreign A&K defendants' motion to make the circuit court's order final andappealable pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), and this timely appealfollows.

Initially, we address the foreign A&K defendants' motion to strike the plaintiffs' brief anddismiss this appeal for failure to provide an adequate statement of facts in violation of SupremeCourt Rule 341(e)(6) (Official Reports Advance Sheet No. 21 (Oct. 17, 2001), R. 341(e)(6), eff. Oct.1, 2001). While the plaintiffs' relatively short statement of facts may not have set forth everyrelevant fact in great detail, our review of the record shows that any error is not so egregious as towarrant granting the motion. Therefore, the foreign A&K defendants' motion to strike the plaintiffs'brief and dismiss this appeal is denied.

An Illinois court can assert in personam jurisdiction over a non-resident defendant pursuantto section 2-209 of the Code if the defendant is, inter alia, transacting business in Illinois (735 ILCS5/2-209(a)(1) (West 2000)) or "doing business" in Illinois (735 ILCS 5/2-209(b)(4) (West 2000). The burden rests with the plaintiff to establish a prima facie basis for exercising in personamjurisdiction over a non-resident defendant. Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App.3d 556, 559 (2003). A plaintiff's prima facie case may be overcome by uncontradicted evidence bythe defendant which defeats jurisdiction. Alderson v. Southern Co., 321 Ill. App. 3d 832, 846(2001). Where the circuit court's determination of jurisdiction is based solely upon documentaryevidence our standard of review is de novo. Alderson, 321 Ill. App. 3d at 846.

Our discussion begins with A&K Luxembourg and a finding that A&K Luxembourg waivedany objection to the circuit court's jurisdiction. An Illinois court obtains personal jurisdiction overa defendant once service is effectuated or when the defendant enters a general appearance. Clay v.Huntley, 338 Ill. App. 3d 68, 76 (2003). Any action taken by a defendant which recognizes the causeof action as being in court constitutes a general appearance unless the action is taken for the solepurpose of objecting to the court's jurisdiction over the defendant's person. Clay, 338 Ill. App. 3dat 76. An exception to the general appearance rule is provided by Rule 201(l), which allows adefendant to conduct limited discovery regarding the issue of personal jurisdiction withoutsubmitting to the general jurisdiction of the court or waiving any objection thereto. Official ReportsAdvance Sheet No. 8 (May 17, 2002), R. 201(l), eff. July 1, 2002. However, a defendant's discoverymust be limited to the issue of the court's jurisdiction over the person of the defendant, for theengagement of discovery not limited to the issue of the court's in personam jurisdiction constitutesa general appearance and a waiver of any jurisdictional objection. Pearson v. Lake Forest CountryDay School, 262 Ill. App. 3d 228, 233-34 (1994).

Here, the record shows that A&K Luxembourg served a request to admit upon the plaintiffs. The request to admit dealt with the amount in controversy and, while potentially bearing on the issueof the district court's subject matter jurisdiction, it had no relation to the circuit court's in personamjurisdiction. As such, the request to admit did not fall under Rule 201(l) and, therefore, constituteda general appearance and a waiver of any objection to the circuit court's in personam jurisdiction thatA&K Luxembourg may have had. Further, we note that, at the time the request to admit was filed,the circuit court still retained jurisdiction over the cause as A&K Luxembourg had not yet filed itsnotice of removal with the clerk of the circuit court. See 28 U.S.C.A.