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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN


MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
SARAH PALMER, ET AL.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF THE JOINT MOTION TO DISMISS AND
OPPOSITION TO LEAVE TO AMEND FILED BY DEFENDANTS SARAH PALMER
AND ERIC JOHNSON
INTRODUCTION
As noted in the accompanying Joint Motion for Extension of Time to File a Motion to
Dismiss Under Rule 12(b)(6) and Motion for Leave to File a Separate Rule 12(b)(6) Motion to
Dismiss, the Plaintiff has filed two complaints: the original complaint (ECF No. 1) and a
proposed amended complaint (ECF No. 6) that has not yet been accepted by this Court.
Accordingly, at this stage of the litigation, these Defendants ask for the original complaint to be
dismissed, that leave to amend be refused, and that, consequently, this entire case be dismissed.
The original complaint should be dismissed by this Court for three reasons. First, this
Court lacks subject matter jurisdiction because the Plaintiff has chosen to include multiple
unknown parties, making it impossible for him to prove there is complete diversity of
citizenship. Second, there is no personal jurisdiction over Mr. Johnson and Mrs. Palmer (or any
other defendant). Third, the Plaintiff has failed to properly serve either Mr. Johnson or Mrs.

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Palmer. For each of these reasons, the original complaint should be dismissed under Fed. R. Civ.
P. 12(b)(1), (2), and (5).
Meanwhile, on February 4, 2016, the Plaintiff submitted an alleged amended complaint.
The Plaintiff clearly believed he was using his one free amendment under Fed. R. Civ. P.
15(a)(1)(A). However, as explained in the accompanying Joint Motion for Extension of Time
to File a Motion to Dismiss Under Rule 12(b)(6) and Motion for Leave to File a Separate
Rule 12(b)(6) Motion to Dismiss in paragraphs 3-6, the Plaintiff has not met the conditions to
amend the complaint as a matter of course under 15(a)(1)(A) or (B). Therefore, that amendment
can only be accepted by this Court if it grants leave to amend.
Such leave to amend should be denied. As stated in Moore v. State of Ind., 999 F.2d
1125, 1128 (7th Cir. 1993): [w]hile Rule 15(a) states that leave shall be freely given when
justice so requires, the court should not allow the plaintiff to amend his complaint when to do so
would be futile. The proposed amended complaint suffers from exactly the same failures of
subject matter and personal jurisdiction as the original complaint, and, therefore, if that proposed
amendment was accepted, it would inevitably be dismissed. Accordingly, this Court should deny
leave to file the proposed amended complaint because it is futile, andhaving dismissed the
original complaintdismiss the entire case.
I.
THE AMENDED COMPLAINT SHOULD BE DISMISSED AND LEAVE TO AMEND
SHOULD BE DENIED BECAUSE THERE IS NO SUBJECT MATTER JURISDICTION
The Plaintiff has failed to allege that subject matter jurisdiction exists. Indeed, his
allegations destroy subject matter jurisdiction because he has included unknown defendants in a
diversity of citizenship suit.

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First, there is no federal question jurisdiction in this case, as is obvious on the face of the
original complaint. Every alleged cause of actionand many are not actually causes of action in
the first placeare based on either state common law or state statutory law. Therefore, subject
matter jurisdiction can only exist if there is diversity of citizenship, and that, in turn, requires the
Plaintiff to show there is complete diversity of citizenship. See, e.g., Howell by Goerdt v.
Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997).
Complete diversity of citizenship, however, cant be proven by the Plaintiff unless he
actually knows the names and whereabouts of every defendant. He does not, describing many as
simply as John Does and Jane Roes. Such ignorance is fatal to jurisdiction. [B]ecause the
existence of diversity jurisdiction cannot be determined without knowledge of every defendants
place of citizenship, John Doe defendants are not permitted in federal diversity suits. Id. at
218. Thus, his inclusion of unknown defendants in the original complaint destroys diversity
jurisdiction, justifying dismissal of that complaint.
Further, the Plaintiff has replicated his error in his proposed Amended Complaint. He
has again named several John Does and Jane Roes as defendants in his proposed complaint.
Therefore, for the same reason that the original complaint should be dismissed, accepting the
amendment is futile. As noted supra page 2, this Court can deny leave to amend based on such
futility.
Another difficulty the Plaintiff has in relationship to subject matter jurisdiction in the
original complaint is that the Plaintiff has failed to properly allege that the amount in controversy
exceeds $75,000 as required by 28 U.S.C. 1332 for each Defendant. In the original complaint,
the only attempt to put a monetary value on his damages is found a series of conclusory
allegations found in his Prayer for Relief (pp. 24-25), which cannot be credited by this Court.

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Further, the Defendant inappropriately aggregates those amounts. As stated in Middle Tennessee
News Co. v. Charnel of Cincinnati, 250 F.3d 1077, 1081 (7th Cir. 2001):
In diversity cases, when there are two or more defendants, plaintiff may aggregate
the amount against the defendants to satisfy the amount in controversy
requirement only if the defendants are jointly liable; however, if the defendants
are severally liable, plaintiff must satisfy the amount in controversy requirement
against each individual defendant.
The Plaintiff has only presented conclusory allegations suggesting any kind of aggregation is
appropriate. Such conclusory allegations are insufficient. The failure to allege more than
$75,000 against any one of these Defendants, therefore, is an additional reason to dismiss the
original complaint for lack of subject matter jurisdiction.
Once again, this mistake was also replicated in the proposed amended complaint. The
allegations that the Plaintiff has faced any damages at all are purely conclusory (to the extent that
they exist at all), rending this proposed amendment futile. For instance, in paragraph 31 of the
proposed complaint the Plaintiff asks for $100,000 for something called assumed damages,
apparently believing that in a libel per se case that not only he is entitled to presumed damages,
but they should be presumed to be over $75,000a position not supported by law. In the same
paragraph, he asks for $500,000 of punitive damages without having made any allegations
showing that he is entitled to such damages. The Plaintiffs only other attempt to claim damages
in the proposed amended complaint is found in paragraph 40, which relates to false light invasion
of privacy. Besides the fact that the claim of damages is conclusory, Wisconsin does not
recognize false light invasion of privacy. Ladd v. Uecker, 323 Wis. 2d 798, 780 N.W.2d 216,
221 (Wis. App. 2010); see also Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 928-29 (Wis.
1989) (noting that the tort of invasion of privacy was created statutorily and that false light was
omitted from the statute). Therefore, the Plaintiff has failed to properly allege damages equaling

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more than $75,000 as required for subject matter jurisdiction. For all of these reasons, this Court
should dismiss the original complaint, deny leave to amend, and, consequently, dismiss the entire
case.
II.
THE AMENDED COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL
JURISDICTION
Wisconsins long-arm statute does not authorize the extension of personal jurisdiction
over Mrs. Palmer or Mr. Johnson in Wisconsin, and the extension of jurisdiction over these
Defendants would violate the Due Process clause of the Constitution. Accordingly, this Court
should dismiss the original complaint, deny leave to amend on the basis of futility, and dismiss
the entire matter.
First, as noted above, subject matter jurisdiction can only exist under diversity of
citizenship jurisdiction (or not at all), with the Plaintiff claiming residence in Wisconsin and
correctly alleging that Mrs. Palmer resides in North Carolina and Mr. Johnson lives in
Tennessee.

In a diversity case, whether this Court can exercise personal jurisdiction any

defendant is determined by exactly the same standards as it would in any Wisconsin state court.
In other words, where Wisconsin state law controls the cause of action, it also controls
jurisdiction:
A federal court sitting in Wisconsin has personal jurisdiction over the parties in a
diversity case only if a Wisconsin state court would have such jurisdiction. Klump
v. Duffus, 71 F.3d 1368, 1371 (7th Cir.1995), cert. denied, [518 U.S. 1004], 116
S.Ct. 2523, 135 L.Ed.2d 1047 (1996). Therefore, this court must resolve two
questions. First, it must determine whether the Wisconsin long-arm statute, WIS.
STAT. 801.05, applies to Mr. Bulso [the defendant]. Mid-America Tablewares,
Inc. v. Mogi Trading Co., 100 F.3d 1353, 1358-59 (7th Cir.1996); see In re AllStar Ins. Corp., 110 Wis.2d 72, 76, 327 N.W.2d 648 (1983). Second, if the longarm statute does apply, the court must then decide whether its exercise of
jurisdiction over Mr. Bulso comports with the due process requirements of the
Fourteenth Amendment. Mid-America Tablewares, 100 F.3d at 1359; see In reAll Star, 110 Wis.2d at 76, 327 N.W.2d 648.
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Nelson v. Bulso, 979 F.Supp. 1239, 1242 (E.D. Wis., 1997). Further, the Plaintiff, as the party
seeking to establish personal jurisdiction, bears the burden of showing that such jurisdiction
exists. Lincoln v. Seawright, 104 Wis. 2d 4, 9 (Wis. 1981) (citing Schmitz v. Hunter Machinery
Co., 89 Wis. 2d 388, 396, (Wis. 1979)); see also Jennings v. AC Hydraulic A/S, 383 F.3d 546,
548 (7th Cir. 2004) (Once a defendant moves to dismiss for lack of personal jurisdiction ... the
plaintiff bears the burden of demonstrating the existence of jurisdiction). Neither the original
complaint, nor the proposed amended complaint cites to any provision of WIS. STAT. 801.05
supporting the Plaintiffs assertion of jurisdiction, and there are no facts in either complaint
supporting such jurisdiction. Further, even if jurisdiction was authorized by WIS. STAT.
801.05, it would violate the due process clause. Accordingly, the original complaint should be
dismissed for lack of personal jurisdiction, leave to file the proposed amended complaint should
be denied, and the entire case should be dismissed.
A.

This Court Doesnt Have Personal Jurisdiction Over the Defendants Under
WIS. STAT. 801.05
As noted in Nelson, the first step in determining whether a court sitting in a diversity case

has personal jurisdiction is to determine if any state law enables such jurisdiction. Plaintiff has
not designatedeither in the original complaint or the proposed amended complaintany part
of WIS. STAT. 801.05 that this case allegedly meets, and he has not alleged facts that would
allow this Court to determine that the statute had been met.

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The only provision of 801.05 that are worth examining at all is 801.05(1)(d), which
states the following: 1
(1)

LOCAL PRESENCE OR STATUS. In any action whether arising


within or without this state, against a defendant who when
the action is commenced ...
(d)

Is engaged in substantial and not isolated activities


within this state, whether such activities are wholly
interstate, intrastate, or otherwise.

The case law has established that whether such substantial ... activities exist is
determined by examining the following factors:
(1) the quantity of defendants contacts; (2) the nature and quality of defendants
contacts; (3) the source and connection of the cause of action with those contacts;
(4) the interests of Wisconsin in the action; and (5) the convenience to the parties
of employing a Wisconsin forum.
Rasmussen v. Gen. Motors Corp., 335 Wis.2d 1, 15-16 (Wis. 2011).

None of the other subsections appear to be implicated even slightly on the facts as Plaintiff has
alleged. For instance, neither of these Defendants were present in Wisconsin when they were
allegedly served, as required under 801.05(1)(a). Neither them are domiciled in Wisconsin as
required by 801.05(1)(b). Neither of them are corporations as required by 801.05(1)(c). No
special jurisdiction statutes apply under 801.05(2). There is no allegation of a local act or
omission required under 801.05(3), because Plaintiff never alleges where anyone is when he or
she allegedly committed these alleged torts. See, e.g., Jefferson Electric, Inc. v. Torres, 09-C465, 2009 WL 4884379 (E.D. Wis. Dec. 10, 2009) (Neither the receipt of communications
within Wisconsin from a remote defendant, nor the sending of communications from Wisconsin
to a remote defendant, constitute acts or omissions within this state by that defendant); see
Pavlic v. Woodrum, 169 Wis.2d 585, 486 N.W.2d 533 (Wis. App., 1992) (holding that the act of
sending allegedly fraudulent letters into Wisconsin from out-of-state did not constitute a local
act under 801.05(3)); see also Rasmussen v. Gen. Motors Corp., 335 Wis.2d 1, 22 (Wis.,
2011) (citing Woodrum with approval). Likewise, the Plaintiff has not alleged any solicitation
or service activities carried on within Wisconsin as required by 801.05(4)(a), or that any
[p]roducts, materials or things processed, serviced or manufactured by the defendant were used
or consumed in Wisconsin as required by 801.05(4)(b). He is complaining about words, not
tangible things. Similarly, there is no allegation related to local property that satisfies
801.05(6), there is no allegation of a deficiency judgment as required by 801.05(7), there is
no allegation related to the Defendants allegedly being the director, officer or manager of a
corporation, or an LLC as required by 801.05(8); this case doesnt relate to taxes, insurance,
marriage, or a personal representative of a deceased under 801.05(9)-(12), respectively.
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In the case of Mrs. Palmer, there are no alleged contacts whatsoever with Wisconsinall
of her alleged activities consist of writing on the Internet to a general audience, see Declaration
of Sarah Palmer attached as Exhibit Aand, therefore, the first two factors counsel against
recognizing jurisdiction.

Further, since there are no contacts with Wisconsin, there is no

connection between such non-contacts and the cause of action, and, therefore, the third factor
counsels against personal jurisdiction. Likewise, Wisconsin has no valid interest in regulating
the expression of persons that occur outside its borders, and, therefore, the fourth factor favors
Mrs. Palmer.
Finally, convenience favors Mrs. Palmer. Mrs. Palmer lives in North Carolina. Mr.
Johnson lives in Tennessee. The Plaintiff lives in Wisconsin. The location of every other party
is unknown. Any courthouse in either Tennessee or North Carolina is more convenient to the
majority of the known parties in this case, so the balance of convenience does not favor
Wisconsin.
Turning to Mr. Johnson, the Plaintiff alleges five total contacts in the original complaint:
three emails, two phone calls, one voice mail message, and an unknown number of letters. Even
if we presume this is true, it is insufficient. For instance, in Vermont Yogurt Co. v. Blanke Baer
Fruit and Flavor Co., 107 Wis.2d 603 (Wis. App. 1982) , the defendant corporation (1) had a
regional sales representative whose territory included Wisconsin, (2) employed a part-time
salesperson, a resident of Wisconsin, to sell its products in Wisconsin, (3) used Wisconsin firms
to distribute its products, (4) advertised in national trade magazines, (5) did direct mailing to
Wisconsin firms, (6) sent technical personnel to Wisconsin to assist customers trying new
products, (7) attended trade shows in Wisconsin and reimbursed its Wisconsin distributors for
expenses incurred in attending such trade shows, and (8) derived 3% of its total nationwide sales

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from Wisconsin despite not being licensed to do business in Wisconsin or having any offices,
warehouses or manufacturing plants or owning any property in Wisconsin. However, these
contacts, which greatly dwarf the contacts in this case, were found to be insufficient in Vermont
Yogurt to support an assertion of jurisdiction under 801.05(1)(d).
Other examples of greater contacts being found to be insufficient abound in the case law.
In Commercial Financial Corp. v. McCaffrey, 197 Wis.2d 116 (Wis. App., 1995), that court
found that Wisconsin didnt have personal jurisdiction over a law firm that provided legal
services to some Wisconsin clients (while operating out of state). Surely that involved, at a
minimum, communications equivalent to three emails, two phone calls, a voice mail message
and an unstated number of letters. Likewise, in U.S. Venture Inc. v. McCormick Transp. LLC,
Case No. 15-C-990 (E.D. Wis., Nov. 3, 2015), this Court found that it didnt have jurisdiction
under 801.05(1)(d) over defendants who made three or four phone calls to Wisconsin, sent
three emails, and made an unspecified number of payments, id. at 9, to the plaintiff in that
case, a Wisconsin corporation. Similarly, a single visit to Wisconsin, and approximately $6,500
of sales in Wisconsin (in 1971 dollars) was insufficient in Nagel v. Crain Cutter Co., 50 Wis.2d
638 (Wis., 1971), while in Towne Rlty., Inc. v. Bishop Enterprises Inc., 432 F.Supp. 691 (E.D.
Wis., 1977) an unspecified number of telephone conversations and meetings in Wisconsin,
combined with signing an agreement in Wisconsin, was not sufficient to create jurisdiction in the
state. Finally, in Ricoh Co., Ltd. v. Asustek Computer, Inc., 481 F.Supp.2d 954, 963 (W.D. Wis.,
2007), the court found that a handful of local sales [of computers] does not qualify as
substantial activity, when neither defendant is alleged to have ever set foot in Wisconsin.
These are only a few of the many cases where a greater degree of contact was found to be
insufficient to trigger jurisdiction under WIS. STAT. 801.05(1)(d).

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Further, this Court doesnt have to assume the truth of every allegation in the complaint
when determining whether the Plaintiffs assertion of jurisdiction is appropriate. Attached as
Exhibit B is the Declaration of Eric Johnson, which states that he did not send any of the
complained-of emails or letters, that he only made one phone call, and that he only left one voice
mail message. Such allegations can be considered to rebut the complaint and, therefore, this
Court should consider Mr. Johnson as only having those two contacts with the state. Thus, the
allegations in the original complaint are not sufficient on their face, and when one considers only
those communications that have not been rebutted by Mr. Johnson, the basis of the Plaintiffs
assertion of jurisdiction becomes even weaker.
To apply the five factors to these facts, the quality and quantity of contacts is slight, the
source and connection of the cause of action with those contacts is anemic, 2 the interests of
Wisconsin in the action is as slight as it is with Mrs. Palmer, and the balance of conveniences
favor Mr. Johnson for the same reason that they favor Mrs. Palmer. For all of these reasons, this
Court should hold that it lacks personal jurisdiction over both Mrs. Palmer and Mr. Johnson.
Moreover, the proposed amended complaint does nothing to cure these faultsin fact, it
alleges even less on the subject of jurisdiction in relation to Mr. Johnson than the original
complaint while continuing to allege no contacts in relationship to Mrs. Palmer. Indeed, the
Plaintiff fails to allege facts supporting an assertion of personal jurisdiction over a single
defendant. Therefore, it would be futile to accept this proposed amendment and, accordingly,
leave to amend should be denied. Instead, the entire case should be dismissed.

Indeed, as noted infra 11, neither of those communications were defamatory as a matter of law.
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B.

This Court Doesnt Have Personal Jurisdiction Over the Defendants Under the Due
Process Clause
Even if WIS. STAT. 801.05 were interpreted to allow jurisdiction over these Defendants,

the allegations are not sufficient to meet the standards of the due process clause.
In regards to Mrs. Palmer, the Plaintiff appears to believe that the mere allegation that she
wrote about him on the Internet to a general audience is sufficient to confer jurisdiction. It is not.
For instance, Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) presents facts
similar to this case in nearly every relevant respect. That case involved two Connecticut
newspapers (and members of their respective staffs) that ran a corresponding website which
published articles that allegedly defamed a Virginia prison warden. That plaintiff attempted to
argue that Virginia could exercise jurisdiction over these Connecticut residents as follows:
the [defendants], knowing that [the plaintiff, the warden of a Virginia prison] was
a Virginia resident, intentionally discussed and defamed him in their [newspaper]
articles, (2) the newspapers posted the articles on their websites, which were
accessible in Virginia, and (3) the primary effects of the defamatory statements on
[the plaintiffs] reputation were felt in Virginia.
Id. at 261-62. However, the Young court found this was insufficient because there was no
evidence of any intent to target a Virginia audience:
As we recognized in ALS Scan, a persons act of placing information on the
Internet is not sufficient by itself to subject[] that person to personal jurisdiction
in each State in which the information is accessed. [ALS Scan, Inc. v. Digital
Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)]. Otherwise, a
person placing information on the Internet would be subject to personal
jurisdiction in every State, and the traditional due process principles governing a
States jurisdiction over persons outside of its borders would be subverted. Id.
315 F.3d at 263. By the Young standard, there is nothing before this Court allowing it to
determine that the posts at issue were meant specifically for a Wisconsin audience, compared to
a national or even a global audience.

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Further, this standard has been adopted as the law of the Seventh Circuit. In Mobile
Anesthesiologists Chicago, LLC. v. Anesthesia Assocs. of Houston Metroplex, 623 F.3d 440 (7th
Cir., 2010), the Seventh Circuit faced a claim that a harmful website, visible in Illinois, subjected
out-of-state-defendants to Illinois jurisdiction. The Seventh Circuit rejected this claim in part by
citing Young as follows:
A plaintiff cannot satisfy the Calder [v. Jones, 465 U.S. 783 (1984)] standard [for
personal jurisdiction] simply by showing that the defendant maintained a website
accessible to residents of the forum state and alleging that the defendant caused
harm through that website. See, e.g., Panavision International, L.P. v. Toeppen,
141 F.3d 1316, 1322 (9th Cir.1998) (We agree that simply registering someone
elses trademark as a domain name and posting a web site on the Internet is not
sufficient to subject a party domiciled in one state to jurisdiction in another.);
Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir.2002) (no express
aiming where the defendant newspapers only contacts with the forum state were
through websites aimed at an out-of-state audience).
Id. at 446. The act of writing on the Internet does not subject one to personal jurisdiction in
every state of the union. Indeed, a contrary ruling would likely create an inappropriate chilling
effect on protected speech, at the prospect of being haled into a court far from your home
which might be the Plaintiffs ultimate goal in this suit. If the Plaintiff is genuinely aggrieved by
anything Mrs. Palmer wrote, on the Internet, to a general audience, he needs to come to North
Carolina in order to bring suit.
Turning to Mr. Johnson, in terms of specific jurisdiction, the only contacts with the forum
do not relate to any cause of action. According to the Declaration of Eric Johnson, the lone
phone call consisted of two comments that were allegedly disparaging of Mr. Schmalfeldt,
whether true or not. First, he gave a general description of the skits attached as Exhibits 1-3 of
to the proposed amended complaint (ECF Nos. 6-2, 6-3, and 6-4) and, based on that description,
said that they were like child porn. An opinion based on disclosed facts is just that: an
opinion. Such opinions are protected by the First Amendment. Milkovich v. Lorain Journal Co.,
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497 US 1, 27 n. 3 (1990) (statements of opinion, based on disclosed facts, cannot support a


defamation claim). As for the voice mail, it simply referenced his opinion that Mr. Schmalfeldts
skits are like child pornography.
Turning back to the lone phone conversation, Mr. Johnson also denies the allegation in
paragraph 39 of the original complaint that he called the Plaintiff a terroristhe only noted that
Mr. Schmalfeldt is associated with the convicted terrorist Brett Kimberlin. See, e.g., Kimberlin v.
White, 7 F.3d 527, 528-29 (6th Cir. 1993) (detailing how Mr. Kimberlin bombed a town for
nearly a week, costing one man his life). The Plaintiff admits that he is associated with Mr.
Kimberlin, and, therefore, it cannot be defamation to state that the Plaintiff is associated with Mr.
Kimberlin because it is the truth.
As can be seen from the above, neither the phone call nor the voice mail is defamatory
and, therefore, neither contact relates to the cause of action. Further, in Nieman v. Grange Mut.
Cas. Co., Case No. 11-3404, at 18 (C.D. Ill., April 26, 2012), that court declared that [t]he
Court further holds as a matter of law that a single telephone interview with an Illinois citizen is
insufficient to establish specific personal jurisdiction. Further, Neiman held that the exercise
of such jurisdiction does not comport with traditional notions of fair play and substantial justice
and is contrary to the United States and Illinois Constitutions. Id. A phone call and a voice
mail message should not be sufficient in this case.
As for general jurisdiction under the due process clause, as stated in Edgenet, Inc. v. GS1
U.S. Inc., Case No. 09-CV-65, at 9 (E.D. Wis., June 27, 2011), this requires the defendant to
have such extensive contacts with the state that it can be treated as present in the state for
essentially all purposes, and [t]he contacts must be such that they approximate physical
presence. A phone call and a voice mail message should not be sufficient to assert general

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jurisdiction over Mr. Johnson. Again, if the Plaintiff has any genuine grievance against Mr.
Johnson, he needs to come to Tennessee to bring suit.
Further, the proposed amended complaint doesnt improve matters on this front. The
proposed amended complaint continues to fail to establish personal jurisdiction against any
defendant, rendering the proposed amendment futile. Therefore, this Court should dismiss the
original complaint for lack of personal jurisdiction, deny leave to amend and dismiss the entire
case.
III.
THE COMPLAINT SHOULD BE DISMISSED FOR IMPROPER SERVICE
Rule 4(c)(1) states that [a] summons must be served with a copy of the complaint. As
demonstrated by the Declarations of both Mr. Johnson and Mrs. Palmer, that has not occurred.
Instead, the Plaintiff served on them what appears to be very faded copies of the summons and
copies of the proposed amended complaintwhich is not yet a valid complaint.

See

Declarations of Sarah Palmer and Eric Johnson attached as Exhibits A and B. Because the
proposed amended complaint was not filed with a motion for leave to amend, it is possible this
Court might reject it out of hand. This is an additional reason to dismiss the complaint for these
Defendants.

WHEREFORE, this Court should dismiss the original complaint for all defendants based on a
lack of subject matter under Rule 12(b)(1); this Court should dismiss the original complaint for
lack of personal jurisdiction under Rule 12(b)(2); this Court should dismiss original complaint
for insufficient service of process under Rule (b)(5); this Court should further deny leave to
amend because it would be futile; this Court should dismiss the entire case; and this Court should
provide any other relief that is just and equitable.
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Tuesday, March 1, 2016

Respectfully submitted,
s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Johnson and Palmer
Va Bar# 48882
DC Bar #481668
P.O. Box 3075
Manassas, Virginia 20108
(703) 216-0455
(No fax)
AaronJW1972@gmail.com

VERIFICATION
I, Aaron Walker, state under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that all exhibits are true and correct copies of
the originals.
Executed on Tuesday, March 1, 2016.
s/ Aaron J. Walker

CERTIFICATE OF SERVICE
I certify that on the 1st day of March, 2016, I served copies of this document on William
Schmalfeldt at 3209 S. Lake Drive, Apt. 108, St. Francis, Wisconsin 53235 by mail.

s/ Aaron J. Walker

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EXHIBIT A

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UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
SARAH PALMER, ET AL.,
Defendants.
DECLARATION OF SARAH PALMER
1.

My name is Sarah Palmer, and I make these statements based upon my own

personal knowledge. I am a resident of North Carolina. I am over 18 years of age, and if called
to do so, I am competent to testify that the contents of this declaration are accurate and true.
2.

On Saturday, February 13, 2016, my grandsons caretaker informed me that while

I was away from home, a process server had visited and had left some legal papers for me.
3.

The papers left with him were as follows: a document titled a summons and a

copy of the proposed amended complaint filed in this case (ECF No. 6). The summons
appears to be a genuine but severely faded copy of the original. There appeared to be no date or
seal.
4.

This case involves several writings I placed on the internet. To the extent that I

have actually written any of the statements attributed to me, each of these writings was targeted
to the world at large and not to an audience in a particular state. None of them were targeted
toward Wisconsin. I have also sent one email to Mr. Schmalfeldt asking him to cease and desist

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 2 of 3 Document 12-1

from the stalking and harassing conduct that eventually provided the basis of a stalking/no
contact order I have obtained in North Carolina. Aside from that, I have never knowingly
emailed the Plaintiff while he lived in Wisconsin, I have never called him, I have never written a
letter, nor have I engaged in any other kind of directed communication targeting him. Further, I
have made no phone calls, sent no emails, and sent no letters to anyone else in Wisconsin.

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.

Executed on February 23, 2016 in

Reidsville

(city)

North Carolina
(state/territory)

s/ Sarah Palmer
(signature)

2
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 3 of 3 Document 12-1

EXHIBIT B

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 1 of 4 Document 12-2

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION
WILLIAM SCHMALFELDT,
Case No. 2:15-cv-01516-NJ
Plaintiff,
v.
SARAH PALMER, ET AL.,
Defendants.
DECLARATION OF ERIC JOHNSON
1.

My name is Eric Johnson, and I make these statements based upon my own

personal knowledge. I am a resident of Tennessee. I am over 18 years of age, and if called to do


so, I am competent to testify that the contents of this declaration are accurate and true.
2.

On Thursday, February 11, 2016, a process server visited my home and attempted

service in this suit. Such service consisted of: a document titled a summons and a copy of the
proposed amended complaint filed in this case (ECF No. 6). The summons appears to be
genuine but severely faded copy of the original.
3.

This case concerns writings I have allegedly placed on the Internet. Any such

writings I have actually made were targeted to a general audience and to the world at large.
4.

The Plaintiff also claims that I have sent letters to persons in Wisconsin

discussing the Plaintiff in defamatory or disparaging (but true) terms. I have never done so.
5.

The Plaintiff also claims that I have sent a number of emails contained in Exhibit

12 to the original complaint (ECF No. 1-15) and Exhibit 4 to the proposed amended complaint

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 2 of 4 Document 12-2

(ECF No. 6-5). At least one of these emails appears to be sent by a websites contact form. I did
not send those messages.
6.

The Plaintiff also claims that I have made a number of phone calls into

Wisconsin.

I have only made two that contained any disparaging information about Mr.

Schmalfeldt: one which resulted in a conversation with a woman who identified herself as Cindy
Lopez, apartment manager for Juniper Court and Canticle Court, and a second call where I left a
voice mail for the same person.
7.

With respect to first call, it was prompted by the fact that the Plaintiff had made

statements to the effect that his Internet radio broadcast was approved of by Juniper Court and
Canticle Court. I was concerned that if this was true, that it might expose the company to legal
liability and, if this was false, that they should be alerted to the misrepresentation. I do not recall
the exact words I used, but at one point, Ms. Lopez asked about the contents of the broadcasts to
which I objected. I accurately described them as containing skits in which underage boys were
engaged in sexual activity and stated that it was like child porn. In the same conversation, I
also stated that Mr. Plaintiff was associated with convicted terrorist Brett Kimberlin, but I did not
refer to the Plaintiff as a terrorist. The voice mail message was largely about other subjects, but
the only derogatory comment I recalled making about the Plaintiff in that message was to refer
back to my opinion that some of his skits were like child porn.
8.

Indeed, writing this today, I believe it is reasonable to conclude that the Plaintiffs

skits are child porn, in that they are pornographic audio involving characters depicted as
children.

2
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 3 of 4 Document 12-2

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.

Executed on February 22, 2016 in

Paris

(city)

Tennessee

(state/territory)

s/ Eric Johnson
(signature)

3
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 4 of 4 Document 12-2

UNREPORTED OPINIONS
Provided under E.D. Wis. Civil L. R. 7(j)(2)
U.S. Venture Inc. v. McCormick Transp. LLC, Case No. 15-C-990 (E.D. Wis., Nov. 3, 2015)
Nieman v. Grange Mut. Cas. Co., Case No. 11-3404, at 18 (C.D. Ill., April 26, 2012)
Edgenet, Inc. v. GS1 U.S. Inc., Case No. 09-CV-65, at 9 (E.D. Wis., June 27, 2011)

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 1 of 7 Document 12-3

U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

U.S. VENTURE INC., Plaintiff,


v.
MCCORMICK TRANSPORT LLC and
JOEL MCCORMICK, Defendants.

customers. Prior to May of 2014, Joel


McCormick, acting as an agent of McCormick
Transport,
contacted
U.S.
Venture,
apparently by telephone, to inquire about
purchasing fuel oil. (Posanski Aff. 2, ECF
No. 12-2.) On May 14, 2014, after this initial
contact, Joel McCormick signed a contract
authorizing his company to buy fuel oil from
U.S. Venture at a terminal in Ferrysburg,
Michigan. (Id. 4.) The first transaction
under the contract was for the purchase of
42,000 gallons of fuel oil at a fixed rate. (Id.)
Subsequently, similar orders were made on
June 3, 2014, and July 14, 2014. (Id. 5, 6.)
On July 14, 2014, Joel McCormick executed a
personal guaranty on behalf of McCormick
Transport, which allowed for the purchase of
fuel oil on credit. (Id. 11.)

Case No. 15-C-990


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
November 3, 2015
Header ends here.
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
Plaintiff U.S. Venture, Inc., sued
Defendant McCormick Transport, LLC, for
damages in the amount of $261,768 allegedly
due U.S. Venture under a fuel oil purchase
contract. Defendant Joel McCormick was
sued under a personal guaranty he signed as a
condition of the agreement between U.S.
Venture and McCormick Transport. U.S.
Venture is a citizen of the State of Wisconsin
and Joel McCormick and both members of
McCormick Transport are citizens of
Michigan. Federal jurisdiction therefore
exists under 28 U.S.C. 1332. The case is
before the court on the defendants' motion to
dismiss for lack of personal jurisdiction. For
the reasons that follow, the motion will be
granted.

All contact between the parties was


through e-mail, fax, and telephone calls. (Id.
8.) All invoices and payments were directed
by McCormick Transport to U.S. Venture's
offices in Appleton, Wisconsin. (Id. 9.) At no
time did an agent of McCormick Transport
visit Wisconsin for business related purposes
involving U.S. Venture. (McCormick Aff. 7,
ECF No. 8.) When a purchase of fuel oil was
made, U.S. Venture would direct its open
market purchase of the fuel oil to the
Ferrysburg, Michigan terminal. (Id. 12.) The
fuel oil that McCormick Transport purchased
was not shipped from Wisconsin. Instead, it
was sent to the Ferrysburg terminal via the
Wolverine Pipeline where McCormick
Transport was able to withdraw the requested
amount and deliver it to various locations in
Michigan. (Id.)

FACTUAL BACKGROUND
U.S. Venture is a Wisconsin corporation
with its principal place of business located in
Appleton, Wisconsin and is engaged in the
business of buying and selling fuel oil on the
open market. (Compl. 2, ECF No. 1.)
McCormick Transport is a Michigan business
that transports fuel oil to customers in the
State of Michigan. It operates entirely in
Michigan and has no Wisconsin

ANALYSIS
In a dispute over personal jurisdiction
the plaintiff initially bears the burden of
proving that jurisdiction exists. RAR, Inc. v.
Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th
Cir. 1997). A federal court exercising diversity
jurisdiction has personal jurisdiction over a
defendant when a court of the state in which

Page 2
-1-

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 2 of 7 Document 12-3

U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

substantial
and
not
isolated
activities
within
this state, whether
such activities are
wholly interstate,
intrastate,
or
otherwise.
...

the federal court sits would have such


jurisdiction. Id. In Wisconsin, there is a twoPage 3
step process for determining whether
personal jurisdiction exists over a nonresident. Kopke v. A. Hartrodt S.R.L., 2001
WI 99, 8, 245 Wis. 2d 396, 629 N.W.2d
662; Johnson Litho Graphics of Eau Claire,
Ltd. v. Sarver, 2012 WI App 107, 6, 344
Wis. 2d 374, 824 N.W.2d 127. First, it must be
determined whether Wisconsin's long-arm
statute, section 801.05, confers jurisdiction
over the defendant. Id. The statute "must be
read broadly" and "liberally construed in
favor of exercising jurisdiction." Lincoln v.
Seawright, 104 Wis. 2d 4, 9, 14, 310 N.W.2d
596 (1981). If the long-arm statute by its
terms confers jurisdiction, then the inquiry
shifts to whether exercising personal
jurisdiction over the party comports with the
due process principles of "minimum contacts"
and "traditional notions of fair play and
substantial justice." Regal Ware, Inc. v. TSCO
Corp., 207 Wis. 2d 538, 542, 558 N.W.2d 679
(Ct. App. 1996) (quoting International Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)).

(5) Local services, goods or


contracts. In any action
which:
...
Page 4
(b) Arises out of
services actually
performed for the
plaintiff by the
defendant within
this
state,
or
services actually
performed for the
defendant by the
plaintiff
within
this state if such
performance
within this state
was authorized or
ratified by the
defendant;
or

Wisconsin's Long-Arm Statute


The first step in the analysis is to
determine whether McCormick Transport
and Joel McCormick are subject to personal
jurisdiction under Wis. Stat. 801.05. U.S.
Venture asserts that personal jurisdiction can
be established under multiple sections of the
statute. It specifically points to the following
provisions:

(c) Arises out of a


promise,
made
anywhere to the
plaintiff or to
some 3rd party for
the
plaintiff's
benefit, by the
defendant
to
deliver or receive
within this state or
to ship from this
state
goods,
documents of title,

(1) Local presence or status.


In any action whether arising
within or without this state,
against a defendant who, when
the action is commenced:
.

(d) Is engaged in
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U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

or other things of
value;
or
.
.
.

Page 5

(e) Relates to
goods, documents
of title or other
things of value
actually received
by the plaintiff in
this state from the
defendant without
regard to where
delivery to carrier
occurred.

Plaintiff's focus on the question of due


process is nevertheless understandable in
light of the Seventh Circuit's decision in
Felland v. Clifton, 682 F.3d 665 (7th Cir.
2012). There the court stated that the twoprong framework that the Wisconsin
Supreme Court had adopted for deciding
whether a state court had personal
jurisdiction over a non-consenting foreign
defendant "should not be taken to imply that
the long-arm statute limits the exercise of
personal jurisdiction any more than basic
considerations of due process." Id. at 678. "To
the contrary," the Felland court explained,
"the constitutional and statutory questions
tend to merge; compliance with the
Wisconsin long-arm statute creates a
presumption that constitutional due process
is satisfied, although the defendant of course
has the opportunity to dispute personal
jurisdiction
on
purely
constitutional
grounds." Id. "Once the requirements of due
process are satisfied," the Felland court
stated, "there is little need to conduct an
independent analysis under the specific terms
of the Wisconsin long-arm statute itself
because the statute has been interpreted to go
to the lengths of due process." Id.

same and both requirements must be met.

Although U.S. Venture references all of


the above quoted sections of Wisconsin's
long-arm statute, it offers no specific
argument under any particular provision.
Instead, U.S. Venture notes that Wisconsin's
long-arm statute is to be "liberally construed
in favor of exercising jurisdiction" and states
in conclusory fashion that "it can be
concluded that personal jurisdiction exists
under numerous sections." (Pl.'s Mem. In
Opp. at 4, 5.) U.S. Venture devotes most of its
brief to the argument that the exercise of
jurisdiction over the defendants would not
offend due process.
The question of whether Wisconsin's
long-arm statute confers jurisdiction over the
defendant is not the same as whether the
exercise of such jurisdiction would offend due
process, however. Unlike many states,
Wisconsin has not included in its statute a
"catch-all" provision extending its reach to
the full limits allowed under the Due Process
Clause of the United States Constitution.
Compare 735 Ill. Comp. Stat. 5/2-209(c) ("A
court may also exercise jurisdiction on any
other basis now or hereafter permitted by the
Illinois Constitution and the Constitution of
the United States."). Although Wisconsin
regards compliance with the State's long-arm
statute as "'prima facie compliance' with the
due process requirements," Lincoln, 104 Wis.
2d at 10, the two are not the

But Felland dealt with a case that clearly


fell within the provisions of Wisconsin's longarm statute, as the court had "no trouble"
concluding that the plaintiff had established
personal jurisdiction under the "local act or
omission" provision of the statute. Id. at 67879 (citing Wis. Stat. 801.05(3)). Felland did
not hold that Wisconsin courts exercise
jurisdiction over foreign non-consenting
defendants in cases that do not come within
any subsection of its long-arm statute. To so
hold would be to ignore the plain language of
the statute and disregard the two-step
approach for determining whether personal
jurisdiction exists that Wisconsin courts
continue to follow. See Rasmussen v. General
-3-

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U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

goods are either delivered to or shipped from


Wisconsin. Id. Here, the fuel oil was neither
delivered to nor shipped from Wisconsin. It
was purchased on the open market and
delivered to Ferrysburg, Michigan. Finally,
subsection 5(e) relates to goods, documents of
title or other things of value actually received
by the plaintiff in this state from the
defendant regardless of where delivery
occurs. Money payments, however, have been

Motors Corp., 2011 WI 52, 15, 335 Wis. 2d 1,


803 N.W.2d 623; Carlson v. Fidelity Motor
Group, LLC, 2015 WI App 16, 8, 360 Wis.
2d 369, 860 N.W.2d 299. I
Page 6
therefore turn to the specific provisions of the
Wisconsin long-arm statute cited by U.S.
Venture.
Consistent with federal constitutional
law, Wisconsin's long-arm statute addresses
both general jurisdiction and specific
jurisdiction. See Rasmussen, 2011 WI 52,
15; Nagel v. Crain Cutter Co., 50 Wis. 2d 638,
648-50, 184 N.W.2d 876 (1971). Specific
jurisdiction applies when a foreign defendant
has purposely directed his activities to
residents of the state, and the litigation
results from injuries alleged to have arisen
out of those activities. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (citing
Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 n.8 (1984));
Rasmussen, 2011 WI 52, 15. On the other
hand, "if the defendant has 'continuous and
systematic' contacts with a state, the
defendant is subject to general jurisdiction
there in any action, even if the action is
unrelated to those contacts." Northern Grain
Marketing, LLC v. Greving, 743 F.3d 487,
492 (7th Cir. 2014) (quoting Helicopteros
Nacionales de Colombia, 466 U.S. at 416);
Rasmussen, 2011 WI 52, 15 ("If general
personal jurisdiction is accorded over a
nonresident defendant, the defendant may be
brought before Wisconsin courts for claims
that are unrelated to the defendant's activities
in Wisconsin.").

Page 7
held not to constitute "other things of value"
as contemplated by the statute. "The mere
sending of money into this state, without
more, cannot constitute a substantial
minimum contact within the purview of due
process requirements." Id. at 645.
U.S.
Venture
also
cites
section
801.05(1)(d), Wisconsin's general jurisdiction
provision, as a basis of jurisdiction.
Subsection (1) of section 801.05 authorizes
the exercise of personal jurisdiction:
In any action arising within or
without this state, against a
defendant who when the action
is
commenced:
(a) Is a natural person present
within this state when served; or
(b) Is a natural person
domiciled within this state; or
(c) Is a domestic corporation or
limited liability company; or
(d) Is engaged in substantial
and not isolated activities within
this
state,
whether
such
activities are wholly interstate,
intrastate, or otherwise.

None of the specific jurisdiction


provisions cited by U.S. Venture apply here.
Subsection 5(b) applies where the claim arises
out of a contract for services. Nagle, 50 Wis.
2d at 644. Here, the contract involved the
purchase of goods, namely fuel oil, not
services. Subsection 5(c) applies to contracts
for the sale of goods, but only where the

Wis. Stat. 801.05(1). U.S. Venture argues


that the court has jurisdiction over the
defendants because they "engaged in
-4-

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U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

terminal. U.S. Venture responded by sending


him a written quote, and he accepted by
sending an email confirming the order. The
fuel oil was sent through the Wolverine
Pipeline to a terminal in Ferrysburg,
Michigan, without ever entering the State of
Wisconsin. McCormick Transport drew the
fuel oil from the terminal at Ferrysburg and
transported it to various locations in
Michigan again without ever entering the
State of Wisconsin. McCormick sent
payments to U.S. Venture's offices in
Wisconsin.

substantial and not isolated activities within


this state."
The Wisconsin Supreme Court has said
that section 801.05(1)(d) "corresponds in a
general way to the 'doing business' statute
common in other states, and presents a
jurisdictional ground which is distinct from
the specific sections of the long-arm statute . .
. ." Nagel, 50 Wis. 2d at 646; see also
Rasmussen, 2011 WI 52, 18 ("Pursuant to
Wis. Stat. 801.05(1), Wisconsin courts may
exercise general personal jurisdiction over a
defendant when that defendant takes up 'local
presence or status' within the state."). Section
801.05(1)(d) requires the court to look to the
nature of the defendants' activities in
Wisconsin to determine whether they were
such as to constitute substantial and not
isolated activities within the meaning of the
statute. Nagel, 50 Wis. 2d at 646. In making

From these facts, I cannot conclude that


either McCormick Transport or Joel
McCormick is doing business in Wisconsin to
the extent needed to confer general
jurisdiction over them under section
801(1)(d). They have not engaged in
substantial activities in Wisconsin so as to
make them present in the state. McCormick
Transport's only contacts with the state
consists of the three or four telephone phone
calls to U.S. Venture's Appleton offices over a
three-month period of time,

Page 8
this
determination,
Wisconsin
courts
consider five factors: "(1) the quantity of the
contacts; (2) the nature and quality of the
contacts; (3) the source of the contacts and
their connection with the cause of action; (4)
the interests of the State of Wisconsin; and
(5) the convenience of the parties." Druschel
v. Cloeren, 2006 WI App 190, 8, 295 Wis.
2d 858, 723 N.W.2d 430 (citing Nagel, 50
Wis. 2d at 648-50).

Page 9
sending three emails confirming the purchase
order, the receipt of invoices from U.S.
Venture's Appleton office, and an unspecified
number of payments to U.S. Venture. Joel
McCormick also apparently received a
personal guaranty from U.S. Venture, which
he signed and returned. Although the value of
the fuel oil purchased by McCormick
Transport is substantial, the defendants'
actual contacts with the state are far less than
those in Nagel where the court found that the
out-of-state defendant was not engaged in
substantial activities in Wisconsin.

Upon consideration of the relevant


factors here, I conclude that the defendants
were not engaged in substantial activities in
Wisconsin. There is no evidence that either
the defendants or any agents or employees of
the defendants ever physically entered
Wisconsin in connection with their business
or for any other reason. The defendants have
no place of business, bank deposits,
telephone, or telephone listing in Wisconsin.
Their place of business is in Michigan and all
of their customers are in Michigan. On three
occasions, Joel McCormick telephoned U.S.
Venture to purchase fuel oil at the Ferrysburg

In Nagel, the California defendant had


no offices or place of business in Wisconsin,
but its general manager had physically
entered the State on its behalf. At the time
suit was commenced, the defendant had been
paying the Wisconsin plaintiff royalties for
-5-

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U.S. Venture Inc. v. McCormick Transp. LLC (E.D. Wis., 2015)

Finally, it should also be noted that


subsection (1) requires the foreign defendant
to be engaged in substantial activities in the
state "when the action is commenced." At the
time U.S. Venture filed suit, the defendants'
activities in Wisconsin, limited though they
previously had been, had ceased entirely. It
thus follows that Wisconsin's long-arm
statute does not confer jurisdiction over the
defendants and their motion should therefore
be granted.

close to six years under a licensing agreement


which gave the defendant the exclusive right
to manufacture and sell plaintiff's patented
carpet cutting tool. The defendant also had a
separate agreement under which plaintiff
agreed to manufacture and supply the
defendant with blade components for the
cutting tools. The case arose out of an alleged
breach of the first agreement. 50 Wis. 2d at
641-42. Finding no jurisdiction for the alleged
breach of contract claim under the specific
jurisdiction provisions of the State's long-arm
statute, the court turned to the question of
whether jurisdiction over the defendant could
be exercised under the general provisions of
the statute. In concluding that it could not,
the court noted that the Wisconsin plaintiff
was the defendant's only customer in
Wisconsin and the annual royalties had
averaged less than $2,000 until 1969 when
they grew to $4,500. With the single
exception of the 1960 visit to the state, the
court noted that all of the contact was by a
mail order arrangement. The plaintiff's claim
was unrelated to the defendant's activities in
the State. Although Wisconsin had an interest
in providing a forum for its citizens, the court
noted that its interest was no different than
any other state. Finally, the court noted that
as to convenience, the mere fact that the
agreement was

CONCLUSION
U.S. Venture had the initial burden of
proving
personal
jurisdiction.
Even
construing section 801.05 broadly, the facts
here do not support a finding of personal
jurisdiction under any of the provisions cited.
Because the plaintiff has failed to establish
that personal jurisdiction exists over the
defendants under Wisconsin's long-arm
statute, there is no need to delve into the due
process prong of the analysis. Accordingly,
the motion to dismiss is GRANTED, and the
action is dismissed without prejudice. The
Clerk is directed to enter judgment
accordingly.
Dated this 3rd day of November, 2015.
s/
William
C.
William
C.
United States District Judge

Page 10

Griesbach
Griesbach

to be governed by Wisconsin law was entitled


to little weight in the absence of other
contacts with the State. Id. at 648-50.
In this case, the defendants' long distance
contacts with the Wisconsin plaintiff occurred
over a far shorter period of time and related
entirely to the delivery of goods that had
never been in the forum state to a completely
different state. This is not the kind of activity,
either in quantity or quality, that can
reasonably be expected to subject a foreign
defendant to Wisconsin's general jurisdiction,
as section 801.05(1) contemplates, based on
the defendant's "local presence or status."
-6-

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 7 of 7 Document 12-3

Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

JASON LEE NIEMAN, Plaintiff,


v.
GRANGE MUTUAL CASUALTY
COMPANY, INTEGRITY MUTUAL
INSURANCE COMPANY AND CINDY
HEINDEL, INDIVIDUALLY
AND AS AN EXECUTIVE OFFICER OF
INTEGRITY MUTUAL
INSURANCE COMPANY; CRITERION
EXECUTIVE SEARCH
OF FLORIDA, INC.; MICHAEL
("MIKE") TINGLEY, INDIVIDUALLY
AND AS AN OFFICER
AND/OREMPLOYEE OF CRITERION
EXECUTIVE SEARCH, INC.,
Defendants.

I. Motion of Integrity Mutual Insurance


Company
Defendant Integrity Mutual Insurance
Company ("Integrity") has moved, pursuant
to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss the Plaintiff's
Complaint. Integrity contends that Plaintiff
cannot state a plausible claim for age
discrimination or retaliation in violation of
the Age Discrimination in Employment Act
("ADEA"), Title VII, 42 U.S.C. 1981, or the
Illinois Human Rights Act ("IHRA").
At this stage, the Court accepts as true all
of the facts alleged by the Plaintiff and draws
all reasonable inferences therefrom. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th
Cir. 2011). "[A] complaint must provide a
short and plain statement of the claim
showing that the pleader is entitled

No. 11-3404
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
ILLINOIS SPRINGFIELD DIVISION

Page 3
ENTER: April 26, 2012
to relief, which is sufficient to provide the
defendant with fair notice of the claim and its
basis." Maddox v. Love, 655 F.3d 709, 718
(7th Cir. 2011) (internal quotation marks
omitted). Courts must consider whether the
complaint states a "plausible" claim for relief.
See id. The complaint must do more than
assert a right to relief that is "speculative."
See id. However, the claim need not be
probable: "a well-pleaded complaint may
proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and
that a recovery is very remote and unlikely."
See Independent Trust Corp. v. Stewart
Information Services Corp., 665 F.3d 930,
935 (7th Cir. 2012) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
"To meet this plausibility standard, the
complaint must supply 'enough fact to raise a
reasonable expectation that discovery will
reveal evidence' supporting the plaintiff's
allegations." Id. The allegations of a pro se
plaintiff are more liberally construed than are
complaints which are drafted by lawyers. See

Header ends here.


OPINION
RICHARD MILLS, U.S. District Judge:
Plaintiff Jason Lee Nieman has filed a
Pro Se Complaint, wherein he asserts a
number of claims pursuant to Title VII, 42
U.S.C. 2000e et seq., the Civil Rights Act of
1866, as amended, 42 U.S.C. 1981, and the
Page 2
Age Discrimination and Employment Act, 29
U.S.C. 621 et seq. The Plaintiff has also
asserted claims pursuant to the Illinois
Human Rights Act, 775 ILCS 5/1-101 et seq..
The Court now considers several Motions to
Dismiss filed by the Defendants. Pending also
are the Plaintiff's Motion for Sanctions and
his Motion to Strike the Opposition of the
Defendants to his Motion for Sanctions.

-1-

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Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

obtained his degree in 1994. A person who


was 22 at that time would have been under 40
in 2010. At this stage, the pro se Plaintiff has
also sufficiently alleged that employees
outside the protected class were treated more
favorably.

Alvarado v. Litscher, 267 F.3d 648, 651 (7th


Cir. 2001).
Specifically, Integrity asserts that the
claims it rejected the Plaintiff's employment
action because of his age in violation of the
ADEA (Count I)

Integrity also alleges the Plaintiff's


retaliation claims pursuant to Title VII (Count
II), 1981, and the IHRA should be dismissed
because the Plaintiff does not allege: (1) that
Integrity actually was aware of his "protected
activity;" and (2) the nature of his "protected
activity." In his Complaint, the Plaintiff
alleges that around October 2009, he became
aware that an internet search "would provide
specific information as to the Plaintiff, the
prior action, the Defendants, and the nature
of this case," which the Plaintiff refers to as
his "protected conduct." See Compl. 20.

Page 4
and the IHRA (Count VII) should be
dismissed with prejudice because he cannot
plead that Integrity actually knew his age
when it rejected his application for
employment. The Plaintiff does not plead that
Integrity or Defendant Cindy Heindel, the
Vice President of Human Resources, had
actual knowledge of his age. Rather, the
Complaint suggests that the Defendants were
aware of the Plaintiff's age, based on the
inclusion of the year he graduated from
college (1989) on a business networking site.
Integrity contends that Plaintiff never pled
that it or Heindel actually reviewed his
LinkedIn1 profile, had knowledge of the date
he graduated from college, or that Integrity
actually determined the Plaintiff's age.

Page 6
The Plaintiff further alleges he "knows that it
is highly common practice for employment
recruiters, human resources professionals,
hiring managers, and other related parties to
'Google' potential employees or job
applicants." See Compl. 20.

Although Integrity claims that Heindel


could not have reviewed his LinkedIn profile,
the Plaintiff alleges in his Response that
during telephone interviews, Heindel did
inquire about and confirm the year that
Plaintiff and the candidate who was selected
for the position each earned their degrees.
According to the Complaint, the Plaintiff's
interview was

Integrity contends that, based on this


subjective assertion, the Plaintiff "presumes"
every employer where he has applied for a job
has learned of his protected conduct, "and in
some cases would likely use it as an unlawful
disqualification or discount factor as to his
candidacy." See Compl. 20. Integrity further
asserts that Plaintiff's Complaint references
an exhibit which arguably suggests that
Plaintiff filed a lawsuit against Nationwide
Mutual Insurance Company. It contends that
Plaintiff has not identified any "protected
conduct" and that his conclusion that he
engaged in such conduct is not enough to
defeat a motion to dismiss.

Page 5
conducted in February 2010. It is not difficult
to determine that someone who graduated
from college in 1989 probably was over the
age of 40 in 2010. Given the Plaintiff's pro se
status, the Court concludes that this is enough
to place Integrity on notice that he is subject
to the protection of the laws against age
discrimination. The Plaintiff has also alleged
that the candidate selected for the position

The Plaintiff claims that although


Integrity denies using the internet to research
job applicants like him, it does not assert that
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Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

that Plaintiff's charge of discrimination was


cross-filed with the Wisconsin Equal Rights
Division because Integrity is a Wisconsin
employer and Plaintiff was applying for a job
in Wisconsin. Therefore, Integrity argues that
Plaintiff cannot pursue claims under the
IHRA because of his failure to exhaust
remedies.

it was not made aware of the alleged


protected conduct by other means. The
Plaintiff further suggests that Integrity's
employment agent was somewhat aware of
Page 7
his previous protected conduct.
Integrity correctly argues that the
allegations in the Plaintiff's Complaint which
pertain to "protected conduct" are highly
speculative. It appears that Plaintiff is
alleging that any potential employer could
possibly have learned of the Plaintiff's
"protected conduct" by conducting an
internet search and refused to hire him for
that reason. It is unclear whether the Plaintiff
has any basis for believing this other than a
subjective belief. However, in considering a
claim which the defendants argued made no
sense and was based on "vague aspersions,
conclusory
statements,
and
supposed
'wrongful' conduct," the Seventh Circuit
observed that those are matters to be
considered at the summary judgment stage
and not when ruling on a motion to dismiss.
See Virnich v. Vorwald, 664 F.3d 206, 213
(7th Cir. 2011). This is particularly true given
the Plaintiff's pro se status, The Court will
Deny Integrity's Motion to dismiss the
retaliation claims.

In response, the Plaintiff claims that


Plaintiff filed the original charge with the
Chicago, Illinois office of the EEOC. Subject
to its own discretion, the EEOC chose to
transfer the matter to the Milwaukee, WI
office for investigation. The Plaintiff points to
775 ILCS 5/7A-102(A-1)(1), which provides in
part, "If a charge is filed with the Equal
Employment
Opportunity
Commission
(EEOC) within 180 days after the date of the
alleged civil rights action, the charge shall be
deemed filed with the Department on the date
filed with the EEOC." Based on this language,
the
Page 9
Plaintiff
contends
the
charge
was
automatically filed. The IHRA does not
require that a charge actually be investigated
by the Illinois Department of Human Rights.
The Court is unable at this time to
conclude that Plaintiff's claims under the
IHRA are deficient and subject to dismissal.

Additionally, Integrity contends that


Plaintiff's claims it violated the IHRA (Counts
VII and VIII) should be dismissed because
Plaintiff failed to exhaust his administrative
remedies under the IHRA and Integrity is not

Based on the foregoing,


Motion to dismiss will be Denied.

Integrity's

II. Motion of Defendant Grange Mutual


Casualty Company

Page 8

In support of its Motion, Defendant


Grange Mutual Casualty Company ("Grange")
has adopted and incorporated by reference
each of the arguments set forth in Integrity's
Memorandum in support of its Motion to
Dismiss. To the extent those arguments are
incorporated, Grange's Motion is Denied for
the same reasons.

an employer under the IHRA.


Integrity asserts that Plaintiff's charge of
discrimination, which is attached to the
Complaint, was cross-filed with the EEOC
and the Illinois Department of Human
Rights. See Compl. 4. However, based on
Exhibit A of the Complaint, Integrity alleges
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corporation had notice of the claim against


the subsidiary and participated in the
administrative
proceedings
on
the
subsidiary's behalf were alone insufficient to
create a factual dispute to defeat summary
judgment. See id.

Grange also asserts it should be


dismissed with prejudice because the Plaintiff
has not and cannot plead that Grange was his
prospective employer. It cannot be liable for
alleged employment discrimination by
Integrity solely because the Plaintiff alleges
that Grange is Integrity's owner and/or
successor in interest. Each statute on which
the Plaintiff relies

In response, the Plaintiff alleges that he


first recognized the name of Grange executive
officer and in-house attorney, Beth W.
Murphy, when he saw her name on the "Right
To Sue" letter from the EEOC. The Plaintiff
claims that he has recognized the "substantial
connections" between Integrity and Grange
since the EEOC charge was filed. He contends
they are "integrated enterprises," and Grange
has been on notice since the charge was filed.
Moreover, a party not named in an EEOC
charge may in some circumstances still be
subject to suit. This exception to the general
rule applies when "an unnamed party has
been provided with adequate notice of the
charge, under circumstances where the party
has been given the opportunity to participate
in the conciliation proceedings aimed at
compliance." See Schnellbaecher v. Baskin
Clothing Co., 887 F.2d 124,

Page 10
requires that Grange act as the employer to
have
liability
for
employment-related
decisions.
Grange contends that Plaintiff does not
plead any facts tending to show that it was
involved in Integrity's decision to reject the
Plaintiff's employment application or that
Grange otherwise acted as an "employer." It
claims that Plaintiff alleges only that Grange
is Integrity's owner and/or successor in
interest and that one of its employees was
involved in the EEOC investigation. See
Compl. 8, 39. The allegation that Grange
monitored and/or controlled Integrity's
activities is, without more, a naked legal
conclusion that is not sufficient to withstand a
motion to dismiss.

Page 12
126 (7th Cir. 1989) (citation omitted).

Additionally, the Plaintiff's claims against


Grange for violation of the ADEA (Count I),
Title VII (Count II), and the IHRA (Counts
VII and VIII) should be dismissed because the
Plaintiff failed to name Grange in his EEOC
charge. "[A] parent organization not named in
the plaintiff's EEOC charge must be dismissed
from the suit unless the plaintiff can show
that the parent had notice of the claim against
it, as opposed to its subsidiary, and had an
opportunity to conciliate on its own behalf."
Olsen v. Marshall

The Plaintiff claims that Murphy was in


position to know of the integration between
the organizations. Moreover like Integrity,
Grange had opportunities to participate in
negotiations or conciliation yet refused those
opportunities.
Although the significance, if any, of
Grange's role in this case is not entirely clear,
the Court concludes that Plaintiff has alleged
sufficient facts at this stage to withstand the
motion to dismiss. Because it is premature to
resolve the factual disputes at this stage of the
litigation, Grange's motion will be Denied.

Page 11
& Ilsley Corp., 267 F.3d 597, 604 (7th Cir.
2001). The court in Olsen determined that the
fact that the plaintiff showed that the parent

III. Motion to Dismiss of Defendant Cindy


Heindel
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Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

See Tamburo v. Dworkin, 601 F.3d 693, 700


(7th Cir. 2010).

The Plaintiff has asserted claims against


Heindel for retaliation in violation of 42
U.S.C. 1981 (Count V) and the Illinois
Human Rights Act (Count VIII), and age
discrimination in violation of the IHRA
(Count VII). Heindel alleges that the claims
must be dismissed under Rule 12(b)(2)
because the Court lacks personal jurisdiction
over her. Heindel claims she does not have
the systematic and routine contacts with
Illinois to warrant

The Plaintiff asserts that the Court has


specific jurisdiction over Heindel pursuant to
735 ILCS 5/2-209(1), (2) and (7). The Illinois'
long-arm statute stretches to the extent
permitted by the due process clauses of the
United States and Illinois Constitutions. See
735 ILCS 5/2-209(c). Heindel contends that
Plaintiff cannot establish that subjecting her
to personal jurisdiction in this Court is
consistent with the due process clauses of
either Constitution.

Page 13
general jurisdiction. Moreover, her lone
telephone call to the Plaintiff, in response to
the submission of his resume for a job in
Wisconsin, is not enough for this Court to
obtain specific jurisdiction over Heindel.

Heindel further asserts that, even if the


Court has personal jurisdiction, the Plaintiff's
claims should be dismissed under Rule
12(b)(6) because the IHRA does not provide
for individual liability for age discrimination
or retaliation and Plaintiff has failed to allege
a retaliation claim against Heindel in
violation of 1981. Therefore, Heindel
contends the claims against her must be
dismissed with prejudice.

Heindel has submitted her Declaration as


an Exhibit to her Motion. A court may receive
affidavits in considering a motion to dismiss.
See Nelson by Carson v. Park Industries, Inc.,
717 F.2d 1120, 1123 (7th Cir. 1983). When
there is a challenge to personal jurisdiction,
the plaintiff bears the burden of establishing
its basis for personal jurisdiction. However,
the plaintiff is entitled to the benefit of the
doubt if comparable levels of proof are
advanced, whether by affidavit or another
means. See id., see also International Steel
Co. v. Charter Builders, Inc., 585 F. Supp.
816, 819 (S.D. Ind. 1984). A plaintiff's
allegations as to personal jurisdiction are
accepted as true, except where they are
refuted by a defendant's undisputed
affidavits. See Swanson v. City of Hammond,
Ind., 411 F. App'x 913, 915 (7th Cir. 2011); see
also International Steel Co., 585 F. Supp. at
819 ("If the party challenging jurisdiction
provides affidavits in support of the motion to
dismiss, the non-movant may not

"The nature of the defendant's contacts


with the forum state
Page 15
determines the propriety of personal
jurisdiction and also its scope-that is, whether
jurisdiction is proper at all, and if so, whether
it is general or specific to the claims made in
the case." Tamburo, 601 F.3d at 701. In order
for a court to have general personal
jurisdiction over a defendant, the individual
must have "continuous and systematic"
contacts with the state, even if the action is
not related to those contacts. See id. The
threshold is high, to the extent that the
contacts must be sufficiently extensive so as
to approximate physical presence. See id.
Occasional visits are not enough for general
jurisdiction. See id.

Page 14
simply rest on the allegations of the
complaint"). Any factual disputes in the
affidavits are resolved in favor of the plaintiff.

As for specific personal jurisdiction, the


defendant's contacts with the state must
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directly pertain to the challenged conduct or


transaction. See id. at 702. "Specific personal
jurisdiction is appropriate where (1) the
defendant has purposefully directed his
activities at the forum state or purposefully
availed himself of the privilege of conducting
business in that state, and (2) the alleged
injury arises out of the defendant's forumrelated activities." Id. The exercise of such
jurisdiction must also be consistent with
traditional notions of fair play and substantial
justice as required by

interview process. Heindel states that she


performed these duties on behalf of Integrity
and did not have any personal interest in the
selection of candidates to continue with the
interview process. Moreover, Heindel does
not own any shares or have any ownership
interest in Integrity. Because her one
telephone call to the Plaintiff was motivated
entirely by her employment situation and not
her personal interests, Heindel alleges the
claims against her should be dismissed
pursuant to Rule 12(b)(2).

Page 16

The Plaintiff claims that he interacted


with Heindel directly, in addition to her
employment agents. He asserts that Heindel's
contacts with the State of Illinois have been
credibly pled as being more numerous and
significant than she acknowledges. The
Plaintiff asserts that her contacts with Illinois
consist of more than a single telephone call to
him in February 2010. These facts have not
been stipulated by the parties. The Plaintiff
asserts that the extent of Heindel's contacts
with Illinois is a factual question which is yet
to be resolved. He contends that it is
inappropriate for a Defendant to insert
extrinsic facts into the analysis at this stage of
the proceedings. Therefore, the Plaintiff
asserts that Heindel's argument is

the Fourteenth Amendment's Due Process


Clause. See id.
Heindel further asserts that even if
Illinois courts had personal jurisdiction over
her, the Plaintiff's claims are barred by the
fiduciary shield doctrine because her alleged
conduct was motivated by her employment
interests and not her personal interests. See
Rollins v. Ellwood, 141 Ill.2d 244, 280 (1990).
Pursuant to Illinois' due process clause, it
would be "unfair and unreasonable" to assert
personal jurisdiction over an individual in
such circumstances. See id.
Heindel asserts that, as Integrity's Vice
President of Human Resources, she was
assigned to contact candidates who might
qualify for a Vice President of Claims job
opening to determine if they warranted an
interview at the company's Wisconsin
headquarters. Pursuant to this directive,
Heindel reviewed resumes and conducted
telephone conferences with certain applicants
to determine if Integrity should invite an
applicant to Wisconsin for an interview.
Heindel conducted a pre-interview telephone
conference with the Plaintiff in or around
February 2010. She rejected the Plaintiff as a
viable candidate to continue with Integrity's

Page 18
without merit.
Heindel has submitted a Declaration
under penalty of perjury. According to the
Declaration, Heindel's contacts with Illinois
are extremely limited. Heindel has met her
burden by refuting the Plaintiff's allegations.
The Plaintiff has essentially rested on the
allegations in his Complaint, which is
insufficient to defeat Heindel's Motion once
she has produced a Declaration. Accordingly,
the Court concludes that general personal
jurisdiction does not lie in Illinois.

Page 17
The Court further holds as a matter of
law that a single telephone interview with an
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Illinois citizen is insufficient to establish


specific personal jurisdiction based on the
claims in this case. Based on the allegations of
the Complaint and record, the Court
concludes that the exercise of such
jurisdiction does not comport with traditional
notions of fair play and substantial justice and
is contrary to the United States and Illinois
Constitutions. The Court further notes that
based on the current record, it appears
Heindel is also protected by the fiduciary
shield doctrine.

Page 20
(A)
The Defendants claim that Plaintiff has
not alleged any basis for personal jurisdiction
over Criterion or Tingley. In paragraph 10 of
the Complaint, the Plaintiff alleges that
Criterion is based in Tampa, Florida and
conducts searches for various positions
throughout the United States. In paragraph
11, he asserts that Tingley is a Criterion
employee based out of Cincinnati.

Because Heindel submitted a Declaration


detailing the extent of her

In support of the motion to dismiss for


lack of personal jurisdiction, relying on the
affidavit of its Founder and President,
Richard James, Criterion states it is an
employment agency that is incorporated
under the laws of Florida and has its principal
place of business there. Criterion is not
licensed, authorized, or registered to do
business in Illinois. Criterion does not have
an office in Illinois and does not own or rent
any personal property in Illinois. It has no
Illinois employees and does not conduct
business in Illinois.

Page 19
contacts with Illinois, the Plaintiff cannot
withstand the Motion to Dismiss by simply
pointing to the allegations of his Complaint.
The Court will Allow Heindel's Motion to
Dismiss for lack of personal jurisdiction.
The Plaintiff has requested leave to
amend his Complaint in the event of the
dismissal of claims. Rule 15(a)(2) of the
Federal Rules of Civil Procedure provides that
a "court should freely give leave when justice
so requires." However, the Court should not
allow a plaintiff to amend his complaint when
doing so would be futile. See Moore v. State of
Ind., 999 F.2d 1125, 1128 (7th Cir. 1993).
Because it would obviously be futile in this
case, the Court will Deny the Plaintiff's
Motion for Leave to Amend his Complaint as
to the claims against Heindel.

Tingley has also submitted an affidavit.


According to the affidavit, Tingley works for
Criterion at an office in Cincinnati, Ohio,
where he has
Page 21
worked for 16 years. Tingley does not
regularly work in Illinois and has no current
Illinois clients. He states that he has not had
any clients in Illinois since approximately
2007. His only contact with Illinois since
2009 has been the limited contact initiated by
the Plaintiff when the Plaintiff called him.
After the initial phone call, Tingley states that
he and the Plaintiff exchanged emails
approximately two times and talked three
times on the phone.

IV. Motion to Dismiss of Criterion Executive


Search and Tingley
Defendants Criterion Executive Search,
Inc. and Michael Tingley, an executive
recruiter for Criterion, have filed a motion to
dismiss. They claim they lack sufficient
contacts with Illinois and seek dismissal
pursuant to Rule 12(b)(2). Alternatively, the
Defendants seek dismissal for failure to state
a claim pursuant to Rule 12(b)(6).

In his Response, the Plaintiff asserts that


he first met Tingley in 2001 when Tingley
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Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

worked at another company and advertised a


position with an Indiana entity. He claims
that the two subsequently maintained a
friendly
professional
relationship.
Periodically, the Plaintiff would call the
Defendant to discuss opportunities or
industry happenings. He claims that he
provided "leads" as to possible jobs or
potential candidates several times from 2004
to 2011. The Plaintiff further asserts that
Tingley also worked for the Plaintiff's prior
employer and had some interactions
pertaining to the general nature of the
organization or jobs which Tingley was trying
to fill. In December of 2007, Tingley
contacted the Plaintiff to ask about a

Page 23
According to the Affidavit of Richard James,
both of those postings are over two years old
and are not currently open.
The Plaintiff filed a Supplemental
Response [d/e 31] to the Motion to Dismiss,
wherein he has included an attachment
referencing
an
Illinois
Commercial
Underwriting Officer position posted on
another website by Criterion and/or Tingley.
The Plaintiff claims that this information was
likely posted in the last four to six months,
which he alleges is inconsistent with
statements offered in support of the motion to
dismiss.
The
Plaintiff
filed
another
Supplemental Response [d/e 33], wherein he
claims that on March 23, 2012, he found
another Chicago-based position advertised for
Criterion.

Page 22
candidate, an Illinois resident, who Criterion
was considering for a role. The Plaintiff
claims that this latter assertion seems to
contradict the pleadings and/or affidavit of
Tingley, even though Tingley stated that he
last had an Illinois client in approximately
2007.

Based on these assertions and the other


factual allegations in the Complaint, the
Plaintiff claims there is an insufficient basis to
dismiss the claims against Criterion for lack
of personal jurisdiction. Moreover, he asserts
that Criterion used the websites in question to
advertise the position at issue (with Integrity
and/or Grange) throughout the country.

The Plaintiff emphasizes that Criterion's


website, www.cesfl.com, describes the
company as a "national executive staffing and
recruitment firm." The Plaintiff claims that,
when he viewed the website, it included 85
positions, 22 of which were located outside of
Florida though none from Illinois. The
Plaintiff claims that he performed further
internet searches, and discovered at one
website two active job searches by Criterion
for positions located in Illinois. On another
website, the Plaintiff discovered another
Illinois-based position which referenced
Criterion's President as the contact. The
Plaintiff contends that this information
contradicts Criterion's assertion that it does
not do regular business in Illinois. In a
Response [d/e 32], the Defendants claim that
the contact for one of these Illinois positions
was a Pennsylvania company. As for the other
two Illinois positions, Criterion states that it
does not recall who was its client.

The Defendants contend that none of the


exhibits relied on in the
Page 24
Plaintiff's
Supplements
establish
that
Criterion or Tingley were doing business in
Illinois. Rather, the documents show only
that they posted positions that were available
in Illinois. They contend that in most
instances, Criterion and/or Tingley had little
or no contact with anyone in Illinois. In
Tingley's affidavit attached to the Defendants'
Response, he states that his client for the
Commercial Underwriting Officer referenced
by the Plaintiff was Colony Specialty
Insurance Group, which is based in
Richmond, Virginia. In approximately August
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2011, Tingley received assignments from


Colony for positions in Chicago, Illinois and
Los Angeles. He received only resumes for the
Chicago position and did not conduct any
interviews. Tingley states that Colony is not
one of his current clients. The Defendants
claim that Tingley did not have contact with
anyone in Illinois for the posted job. Thus, the
Defendants contend that the Plaintiffs'
Supplement does not establish that
Defendants were engaging in business of a
continuous or systematic nature in Illinois.

submitted with the Defendant's Motion and


the Parties' various

In asserting that their contacts are not


sufficient to establish general jurisdiction,
Criterion and Tingley allege they do not have
continuous and

(B)

Page 26
Supplements, that Criterion and Tingley lack
the requisite continuous and systematic
contacts with Illinois for general personal
jurisdiction. Given these extremely limited
contacts, the Court concludes that neither
Criterion nor Tingley is subject to general
personal jurisdiction in Illinois.

As for specific jurisdiction, Criterion and


Tingley claim it is not "fair and reasonable" to
subject them to Illinois courts to answer the
Plaintiff's claim. "The due process clause will
not permit jurisdiction to be based on
contacts with the forum that are random,
fortuitous, or attenuated." uBid, 623 F.3d at
426. The facts as alleged by Plaintiff show
that he made a phone call from Illinois to
Tingley in Ohio. There were a few follow-up
calls and emails. There is no contract alleged
between the Plaintiff and Criterion or Tingley.
Rather, the Plaintiff claims that they were
working with Integrity, who was in
Wisconsin. According to the Defendants, the
limited number of phone calls and emails are
not sufficient to establish specific jurisdiction.

Page 25
systematic contacts with Illinois. Criterion
claims that it has no office or employees in
Illinois and rarely does any business in
Illinois. Tingley does not regularly do
business in Illinois. Relying on their
affidavits, the Defendants claim that their
contacts with Illinois have been very limited.
They cite uBID, Inc. v. GoDaddy Group, Inc.,
623 F.3d 421 (7th Cir. 2010), wherein the
Seventh Circuit determined that although the
GoDaddy
Group
("GoDaddy"),
which
operates the well-known domain registration
site GoDaddy.com, had "extensive and
deliberate" contacts with Illinois, the district
court correctly determined that it was not
subject to general jurisdiction. See id. at 423,
426. Criterion's and Tingley's contacts with
Illinois are much more limited than were
GoDaddy's.

In determining that GoDaddy was subject


to specific jurisdiction, the
Page 27
Seventh Circuit emphasized that the company
had
"thoroughly,
deliberately,
and
successfully exploited the Illinois market."
uBID, 623 F.3d at 427. GoDaddy has had an
extensive national advertising television
campaign, including several years of Super
Bowls ads, and has made significant national
sales. See id. Its marketing, which has
included venue advertising and celebrity and
sports sponsorships, has reached hundreds of
thousands of Illinois residents, which has

The Court concludes that the actions of


an employment agency and/or one of its
employees of advertising a small number of
jobs located in Illinois is insufficient to
subject those Defendants, who do not
regularly do business in Illinois, to general
personal jurisdiction. It is plainly evident
from the Complaint and the Parties'
subsequent filings, including the affidavits
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Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

minimum contacts for claims that are related


to those contacts. The Court will Allow

resulted in millions of dollars of annual


revenue to GoDaddy. See id. Accordingly, the
Court concluded that these contacts were
enough to establish the requisite minimum
contacts with Illinois for claims related to
those contacts. See id.

Page 29
the Motion of Criterion and Tingley to
dismiss for lack of personal jurisdiction.

The court rejected GoDaddy's attempts to


distance itself from Illinois by describing the
market as one among many in a national
advertising campaign. See id. at 428. The
advertising campaign was obviously designed
to reach as many Americans as possible,
including the 13 million residing in Illinois.
See id. The court determined that this
purposeful availment of the Illinois market
subjected GoDaddy to personal jurisdiction
for any claim arising from its business
activities that reach into the state.

The Plaintiff has requested leave to


amend his Complaint in the event of
dismissal of his claims. The Motion to for
Leave to Amend as to Defendant Tingley will
be Denied. The Court concludes that any
attempt by the Plaintiff to amend his
Complaint as to the individual Defendant
would obviously be futile.2 Because futility as
to Criterion is a closer question, the Plaintiff
will be given until May 29, 2012, to amend his
Complaint as to any claims against Criterion.

Page 28

V. Motion for Sanctions and Motion to Strike

See id. at 429.

The Plaintiff has filed a Motion


requesting that the Court sanction Criterion,
Tingley, and Counsel for those Defendants.
He alleges the Defendants have filed
pleadings which have contained information
that is false. The pleadings were supported by
affidavits from Tingley and Richard James,
Criterion's president. The Plaintiff asserts
that these affidavits have

The record establishes that Plaintiff


contacted Tingley at Criterion regarding a
position at Integrity. Tingley and the Plaintiff
had a few follow-up emails and phone calls.
The Parties did not enter into a contract. The
Plaintiff has not pointed to any information
relating to this claim which would tend to
show that Tingley's contacts with Illinois are
any more extensive than those few
correspondences. Over the years, Criterion
has posted thousands of jobs on the internet.
A very small percentage of these jobs have
been based in Illinois or sought only Illinois
candidates. In most of those cases, Criterion's
clients have been located in states other than
Illinois. The Court is unable to conclude that
these
Defendants
have
"thoroughly,
deliberately, and successfully exploited the
Illinois market." See uBID, 623 F.3d at 427.

Page 30
also included information that was not
truthful.
Given its ruling on the Motion to Dismiss
filed by Criterion and Tingley, the Court is
unable to find that the Defendants have filed
false pleadings or affidavits. The Court
concluded that Criterion's and Tingley's
positions that they conducted very limited
business in Illinois were well-supported.
Accordingly, the Motion for Sanctions will be
Denied.

Based on the information in the record,


the Court holds as a matter of law that
Criterion's and Tingley's limited contacts with
Illinois are not sufficiently thorough and
deliberate to establish the necessary

The Plaintiff has filed a Motion to Strike


portions of the Opposition to the Motion for
-10-

Case 2:15-cv-01516-NJ Filed 03/01/16 Page 10 of 11 Document 12-4

Nieman v. Grange Mut. Cas. Co. (C.D. Ill., 2012)

Sanctions filed by Criterion and Tingley. This


Motion will be Denied as Moot.

Any other pending Motions are DENIED


AS MOOT.

Ergo, the Motion to Dismiss of Defendant


Integrity Mutual Insurance Company [d/e 8]
is DENIED.

FOR THE COURT:


Page 32
Richard
United States District Judge

The Motion to Dismiss of Defendant


Grange Mutual Casualty Company [d/e 11] is
DENIED.

Mills

--------

The Motion to Dismiss of Defendant


Cindy Heindel for Lack of Personal
Jurisdiction [d/e 16] is ALLOWED.

Notes:
LinkedIn, which launched on May 5,
2003, describes itself as the "World's Largest
Professional Network," with over 135 million
members in over 200 countries and
territories as of November 3, 2011. See
www.linkedin.com/about.
1.

The Motion to Dismiss of Defendants


Criterion Executive Search of Florida, Inc.,
and Michael Tingley for Lack of Personal
Jurisdiction [d/e 24]
Page 31

2.It

appears that Tingley, like coDefendant Heindel, may also be protected


from suit pursuant to the fiduciary shield
doctrine because the nonresident's contacts
with Illinois pursuant to an employment
relationship do not subject him to suit. See
Rollins, 141 Ill. at 280.

is ALLOWED.
The Claims asserted against Defendants
Heindel and Tingley are DISMISSED WITH
PREJUDICE.
The Plaintiff's Motion for Leave to file an
Amended Complaint as to Defendant Heindel
[d/e 21] is DENIED.

--------

The Plaintiff's Motion for Leave to file an


Amended Complaint against Defendants
Tingley and Criterion [d/e 29] is ALLOWED
IN PART and DENIED IN PART. The Motion
is DENIED as to Tingley and ALLOWED as to
Criterion. Any Amended Complaint is due no
later than May 25, 2012.
The Plaintiff's Motion for Sanctions
against Defendants Criterion and Tingley and
their Counsel, David Holmes, [d/e 35] is
DENIED.
The Plaintiff's Motion to Strike Portions
of the Defendants' Opposition to the Motion
for Sanctions [d/e 38] is DENIED AS MOOT.

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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

court must "take as true all well-pleaded facts


alleged in the complaint and resolve any
factual disputes in the affidavits in favor of
the plaintiff." Tamburo v. Dworkin, 601 F.3d
693, 700 (7th Cir. 2010). GS1 Global is an
international non-profit organized under the
laws of Belgium and with its principal office
in Brussels, Belgium. (Second Am. Compl.
8) (Docket #43); (Walsh Decl. 1) (Docket
#16). It maintains an office, alleged by
Edgenet to be its principal place of business,
in Lawrenceville, New Jersey. (Second Am.
Compl. 8). GS1 Global develops and
controls certain standards and products, such
as bar codes, used by suppliers and retailers
to move products through the global supply
chain. (Second Am. Compl. 9). GS1 Global
has no office or registered agent for service of
process in Wisconsin. (Walsh Decl. 3-4). In
this action, Edgenet has alleged that GS1
Global improperly obtained Edgenet's trade
secrets and copyrighted work and then
improperly disseminated those materials, as
well as improperly made use of those
materials.

EDGENET, INC., Plaintiff,


v.
GS1 U.S., INC., 1SYNC, INC.,
AMERICAN HARDWARE
MANUFACTURERS
ASSOCIATION, and GS1 AISBL,
Defendants.
Case No. 09-CV-65
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Dated: June 27, 2011
Header ends here.
ORDER
On April 22, 2011, defendant GS1 AISBL
("GS1 Global") filed a Motion to Dismiss for
Lack of Jurisdiction (Docket #87) pursuant to
Federal Rule of Civil Procedure 12(b)(2). The
motion follows the court's recent decision
dismissing a number of plaintiff Edgenet,
Inc.'s ("Edgenet") claims in its Second
Amended Complaint. Because the court
dismissed, inter alia, Edgenet's conspiracy
claim under the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), GS1
Global is no longer subject to the nationwide
service of process authorized under RICO. As
such, GS1 Global has renewed its earlier
motion to dismiss for lack of personal
jurisdiction that it made prior to the inclusion
of Edgenet's RICO claim. GS1 Global has
incorporated its earlier briefing, as has
Edgenet, in addition to further briefing with
regard to this motion. Because the court
concludes that it lacks personal jurisdiction
over GS1 Global, it will grant the motion to
dismiss.

I. GS1 GLOBAL'S WEBSITE


GS1 Global has direct control over the
website http://www.gs1 .org. (Walsh Decl.
10); (Rudolph Decl. 29-30) (Docket #20);
(Second Am. Compl. 179). That website
contains an "on-line Community Room," GS1
Global's Global Data Dictionary, and provides
a means of accessing the Global Standards
Management
Page 3
Process. (Walsh Decl. 10); (Rudolph Decl.
33-34, 36); (Shaw Decl. Ex. H) (Docket #89).

Page 2

A. The On-Line Community Room


BACKGROUND

The Community Room is available to any


user that registers an account with GS1 Global
and provides a place to participate in the
Global Standards Management Process,
facilitating communication between users as

The plaintiff bears the burden of


establishing personal jurisdiction and need
only make a prima facie showing, thus the
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

uses these XML standards in Wisconsin to


encode data from Wisconsin GDSN users who
belong to Edgenet's data pool.2 (Rudolph
Decl. 48). This encoding is required before
the data is transmitted to the Global Registry
or other data pools, including other data
pools in Wisconsin. (Rudolph Decl. 48). The
Global Registry is explained below.

well as with GS1 Global. (Rudolph Decl. 36,


38-39); (Walsh Decl. 10). The Community
Room provides a location to view and
comment on Global Data Synchronization
Network ("GDSN") rules, amended rules, and
proposed rules. (Rudolph Decl. 39). In
2008, Edgenet alleges that portions of its
trade secrets and copyrighted works were
posted in the Community Room in formats
that could be viewed and downloaded by any
registered user. (Second Am. Compl. 77,
93).
B.
The
Global
Management Process

II. GS1 GLOBAL'S AFFILIATES,


MEMBERS, AND THE GDSN
GS1 GDSN, Inc. ("GS1 GDSN"), not a
party here, is effectively a wholly-owned
subsidiary of GS1 Global. (Second Am.
Compl. 20); (Rudolph Decl. 14

Standards

The Global Standards Management


Process ("GSMP") is used by GS1 Global to
develop standard methods and rules for
describing
the
product
information
exchanged through the GDSN. (Rudolph
Decl. 32). The GSMP is conducted according
to rules published in the GSMP Manual,
published by GS1 Global and also made
available for download on its website.
(Rudolph Decl. 33). GS1 Global supervises
the GSMP and is responsible for ratifying
changes to both the GDSN Rules as well as
the GSMP rules. (Rudolph Decl. 33).

Page 5
& Ex. 7); (see also GS1 Global Reply Br. 6)
(Docket #26) (admitting, at least for purposes
of motion, that GS1 Global is the sole member
of GDSN, Inc., making it equivalent to a
wholly-owned subsidiary). GS1 Global
supervises the Global Registry and provides
instruction to GS1 GDSN. (Rudolph Decl.
17). GS1 Global's CEO and President is also a
member of GS1 GDSN's board, and the
president of GS1 GDSN reports to GS1
Global's CEO and President. (Rudolph Decl.
17). Additionally, GS1 GDSN's policies must
be approved by GS1 Global. (Rudolph Decl.
18). Recently, GS1 GDSN did not earn enough
revenue to cover expenses and thus had to
secure a loan from GS1 Global. (Rudolph
Decl. 19). In order to bring in revenue,
GDSN users pay fees to data pool providers,
such as Edgenet, who then pay subscription
fees to GS1 GDSN. (Rudolph Decl. 23-24).

Page 4
C. The Global Data Dictionary
The Global Data Dictionary is used to
"store, reuse and share precise core
component and business definitions and their
equivalent representations in targeted
standards." (Shaw Decl. Ex. H). The Global
Data Dictionary is made available to all GDSN
users by virtue of its availability through the
website. (See Shaw Decl. Ex. H).

GS1 Global develops and administers the


GDSN, an internet-based network of
interconnected data pools used to transmit
product data. (Second Am. Compl. j 18).
However, GS1 GDSN runs the day-to-day
operations with regard to the GDSN. (See
Second Am. Compl. 18-20); (See also
Rudolph Decl. 17). This includes forming
participation
agreements
with
users,

D. XML Data Encoding Rules


GS1 Global develops and administers
XML1 standards for electronic business
messages and the standards are part of the
GDSN Rules. (Rudolph Decl. 47). Edgenet
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

codes or that wish to exchange product data


through the GDSN must obtain a "company
prefix" made available only through these
member organizations. (Second Am.

permitting their use of the GDSN. (Rudolph


Decl. 27). The GDSN contains a structure
and rules for describing product attributes, a
taxonomy used to classify and disseminate
GDSN data, and data pools operated as
clearinghouses for GDSN data. (Second Am.
Compl. 18-19). There are approximately
183 Wisconsin companies that use the GDSN.
(Rudolph Decl. 26 & Ex. 10). The GDSN is
governed by a set of

Page 7
Compl. 21). GS1 Global's website specifically
directs individuals to these member
organizations. (Shaw Decl. Ex. C). GS1 U.S. is
the sole source for U.S. companies, including
those in Wisconsin, to obtain a company
prefix. (Second Am. Compl. 21).

Page 6
standards and rules ("GDSN Rules"),
developed and administered by GS1 Global.
(Rudolph Decl. 33-34). GDSN Rules must
be approved by GS1 Global before going into
effect. (Rudolph Decl. 34). The GDSN Rules
are published on GS1 Global's website and
may also be downloaded there. (Rudolph
Decl. 29 & Ex. 12). GDSN users are required
to be familiar with the GDSN Rules and
comply with them as a condition of use.
(Rudolph Decl. 27 & Ex. 11).

ANALYSIS
Edgenet has not established that this
court has either general or specific
jurisdiction over GS1 Global and it will,
therefore, grant the motion to dismiss.
Personal jurisdiction over a non-resident
defendant exists so long as the law of the state
in which the district court is located
authorizes such jurisdiction. Fed. R. Civ. P.
4(k)(1); Janmark, Inc. v. Reidy, 132 F.3d
1200, 1201 (7th Cir. 1997).3 Subjection to
personal jurisdiction in Wisconsin requires
satisfaction of the state's long-arm statute,
Wis. Stat. 801.05, as well as a finding that
the exercise of jurisdiction comports with
constitutional due process. Kopke v. A.
Hartrodt S.R.L., 2001 WI 99, 8, 245 Wis. 2d
396, 629 N.W.2d 662. Upon a motion to
dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of establishing a
prima facie case for such jurisdiction. Steel
Warehouse of Wis., Inc. v. Leach, 154 F.3d
712, 714 (7th Cir. 1998). Upon demonstration
of a prima facie case, the burden shifts to the
defendant to show that the exercise would
violate due process. Id.

Additionally, GS1 GDSN also operates the


Global Registry, part of the GDSN system.
(Rudolph Decl. 17, 40). The Global
Registry acts as a central information
directory, detailing subscription information,
guaranteeing the uniqueness of registered
items and parties, and ensuring all data pools
in the GDSN comply with rules. (Rudolph
Decl. Ex. 19). GS1 Global provides
information about the Global Registry on its
website. (Rudolph Decl. 40). GDSN users,
including those in Wisconsin, register their
products on the Global Registry. (Rudolph
Decl. 40-45).
GS1 U.S., Inc. ("GS1 U.S.") is a member
organization of GS1 Global. (Second Am.
Compl. 10). GS1 Global shares office space
with GS1 U.S. in New Jersey. (Second Am.
Compl. 9-10). From 2004 to 2009, GS1
Global's current CEO and President served as
CEO for both GS1 Global and GS1 U.S.
(Second Am. Compl. 12). Companies that
wish to obtain GS1 Global-controlled bar

Page 8
Under the Constitution, due process
requires certain minimum contacts with the
forum state in order to exercise personal
jurisdiction. Cent. States, Se. & Sw. Areas
Pension Fund v. Reimer Express World
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

2d 738, 780 N.W.2d 529. Wisconsin courts


look to the contacts' quantity, nature and
quality, and source and connection with the
cause of action, as well as the interests of the
state and the convenience of the parties.
Nagel v. Crain Cutter Co., 184 N.W.2d 876,
881 (Wis. 1971); Schroeder v. Raich, 278
N.W.2d
871,
874
(Wis.
1979).
Constitutionally, due process requires that
the contacts be such that maintenance of the
suit will not offend "traditional notions of fair
play and substantial justice." uBID, Inc. v.
GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th
Cir. 2010). At base, general jurisdiction
"requires the defendant to have such
extensive contacts with the state that it can be
treated as present in the state for essentially
all purposes." Id. at 426. The contacts must
be such that they "approximate physical
presence." Tamburo v. Dworkin, 601 F.3d
693, 701 (7th Cir. 2010). As becomes relevant
here, the maintenance of a public website is
insufficient, standing alone, to establish
general jurisdiction that comports with due
process. Id.

Corp., 230 F.3d 934, 942-43 (7th Cir. 2000)


(citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474-76 (1985)). Sufficient minimum
contacts depend on whether the exercise is
one of general or specific jurisdiction. RAR,
Inc. v. Turner Diesel, Ltd., 107 F.3d 1272,
1277 (7th Cir. 1997). General jurisdiction
permits suit on any cause of action because of
continuous and systematic contacts, whereas
specific jurisdiction arises out of the
particular contacts with the forum state. Id.
The Wisconsin long-arm statute generally
tracks these two types of jurisdiction. See Wis.
Stat. 801.05. Here, Edgenet argues that
jurisdiction exists under three separate
provisions of the long-arm statute, essentially
arguing for the existence of both general and
specific jurisdiction in this case.
I. GENERAL JURISDICTION
GS1 Global is not subject to general
jurisdiction in Wisconsin. Under the longarm statute, a Wisconsin court has
jurisdiction over a non-resident defendant
that is "engaged in substantial and not
isolated activities within [the] state, whether
such activities are wholly interstate,
intrastate, or otherwise." Wis. Stat.
801.05(1)(d). The Wisconsin legislature
intended the long-arm statute to provide for
exercise of jurisdiction to the full extent
consistent with due process and thus is "to be
given a liberal construction in favor of the
exercise of jurisdiction." The substantial
contacts

Here, Edgenet first points to GS1 Global's


operation of its website, and then attempts to
show additional contacts justifying the
exercise of general jurisdiction. Because it
finds the additional contacts insufficient, even
assuming the website
Page 10
would otherwise tip the scales in favor of
general jurisdiction, it will refrain from
analyzing the website in detail here. Edgenet
lists three categories of additional contacts:
(1) maintenance of continuing business
relationships with forum residents; (2) agents
conducting business in the forum state; and
(3) making sales to forum residents. Edgenet
cites to cases to illustrate that these categories
of activity justify the exercise of general
jurisdiction, but the cases cited merely show
that such contacts may be sufficient. In each
case, the court still conducted an
individualized analysis, rather than simply

Page 9
required
must
be
"continuous
and
systematic." Travelers Ins. Co. v. George
McArthur & Sons, 130 N.W.2d 852, 854 (Wis.
1964). Substantial and not isolated contacts
may be established where a defendant
"solicit[s],
create[s],
nurture[s],
or
maintain[s], whether through personal
contacts or long-distance communications, a
continuing business relationship with anyone
in the state." 2010 WI App 10, 13, 322 Wis.
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

relying on the general character or


categorization of the acts.4 With that said, the
court will proceed to analyze the asserted
contacts.

Edgenet points to "continuing business


relationships" between GS1 Global and
Wisconsin companies, explaining that at least
ten Wisconsin companies have participated in
the GSMP. It also asserts that GS1 Global and
its agents used the GSMP and the website to
acquire and disseminate the materials at issue
here. However, this assertion cites only to a
paragraph of the complaint alleging such
conduct from GS1 U.S. as well as defendants 1
Sync, Inc. and American Hardware

Edgenet discusses contacts undertaken


by GS1 Global itself, as well as by
organizations that it attempts to paint as
agents of GS1 Global. While Edgenet cites to a
1994 case from this district to establish
agency, Hayeland v. Jaques, 847 F. Supp.
630, 634 (E.D. Wis. 1994), a more recent
Wisconsin appellate decision provides the
proper guidance. In analyzing whether the
court had general jurisdiction over Nissan
Japan, the Wisconsin Court of Appeals held
that
the
long-arm
statute's
general
jurisdiction provision did not authorize
jurisdiction over a parent corporation on the
basis of the contacts of a wholly owned
subsidiary under an agency theory.
Rasmussen v. Gen. Motors Corp., No.
2007AP35, 2010 WL

Page 12
Manufacturers Association - not GS1 Global.
(Second Am. Compl. 93). Thus, the court
may ignore this second assertion because it is
based on a parent-subsidiary theory of
agency. Edgenet also argues continuing
business relationships in that Edgenet has
been a certified data pool provider for GS1
Global and that, as such, it has paid fees to
GS1 GDSN. Again, the court may ignore the
payment of fees to GS1 GDSN. The remainder
of Edgenet's argument focuses on the activity
of GS1 Global's subsidiaries and can likewise
be ignored.

Page 11
1994047, 12-23 (Wis. App. May 20, 2010).5
The court, agreeing with a Western District of
Wisconsin case analyzing the same issue,
noted that "the corporate structure and
corresponding presumption of separateness
requires more than an agency theory to assert
general
jurisdiction
over
a
parent
corporation." Id. at 23. The court concluded
that the only provision allowing jurisdiction
over a parent corporation based on the agency
of its subsidiary is 801.05(4)(a), the
provision authorizing specific jurisdiction
based on acts performed on behalf of the
defendant. Id. The court finds this
pronouncement more persuasive than earlier
cases from this district because it comes
directly from a Wisconsin court, and is more
recent. As such, Edgenet's attempt to impute
the activities of GS1 GDSN and GS1 U.S. for
purposes of establishing the required
"substantial and not isolated activities" fails.
Instead, the court will analyze the remaining
direct contacts of GS1 Global.

As to the GSMP, while GS1 Global does in


fact participate in the GSMP by responding to
the messages and input of participants, the
process occurs through an open forum on its
website that participants choose to engage in.
To the extent GS1 Global's exchange of
electronic messages regarding a standardssetting
process
establishes
contacts
approximating presence in Wisconsin, that
participation would seem to likewise establish
the equivalent of presence in any forum in
which a company voluntarily chooses to
participate in the GSMP. That cannot be the
proper intent of the Wisconsin long-arm
statute, and, even if it were, it would not
satisfy due process.6 GS1 Global establishes
standards for a system that companies
voluntarily choose to participate in. In an
effort to improve the standards it has
established, GS1 Global has passively made its
website an area in which companies may
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

choose to engage and participate in the


refining and further

should be subject to jurisdiction for any cause


of action, regardless of its relation to these
contacts. Thus, GS1 Global is not subject to
general jurisdiction in Wisconsin.

Page 13
development of these standards. It is only
after a given company, potentially located
anywhere in the world, has actively reached
out and made contact with GS1 Global
through its website that GS1 Global then
responds. The nature and quality of this act is
not so much GS1 Global making contact with
the forum state as it is companies within the
forum state making contact with GS1 Global.
GS1 Global's status as the overall
administrator of the GDSN does not change
this analysis.

II. SPECIFIC JURISDICTION


Edgenet has also failed to establish that
Wisconsin's long-arm statute permits specific
jurisdiction over GS1 Global and, in any
event, the exercise of such would violate due
process. Wisconsin statute permits the
exercise of specific jurisdiction in a number of
situations, including where there is an injury
within Wisconsin by means of an out-of-state
act so long as, at the time of injury,
"[s]olicitation or service activities were
carried on within [Wisconsin] by or on behalf
of the defendant." Wis. Stat. 801.05(4)(a).
Additionally, specific jurisdiction is also
proper where the action "[a]rises out of . . .
services actually performed for the defendant
by the plaintiff within [Wisconsin] if such
performance
within
[Wisconsin]
was
authorized or ratified by the defendant." Wis.
Stat. 801.05(5)(b). Further, as with general
jurisdiction, the exercise of specific
jurisdiction must comport with due process.
uBID, 623 F.3d at 426. The court discusses
each statutory argument for jurisdiction in
turn, followed by a discussion of due process.

Edgenet attempts to paint itself as acting


as a data pool provider on behalf of GS1
Global, but the reality is that GS1 Global
offers a standardized system of exchanging
information that companies are free to avail
themselves of, but when they do, they do so
for their own business purposes, not for the
benefit of GS1 Global. In this way, the general
availability of the GDSN and GSMP are unlike
the availability of a product for purchase.
Further, when a company does avail itself of
the use of the GDSN, it deals with GS1
Global's subsidiaries. The fact that Edgenet
and other Wisconsin companies use the
GDSN establishes no more continuous and
systematic contact with Wisconsin by GS1
Global than does a Wisconsin-based website
developer's use of the coding standards
developed by the World Wide Web
Consortium in building a website. Neither of
these forms of contact suggest that GS1
Global has solicited, created, or maintained
business relationships in Wisconsin. In sum,
the nature and quality of GS1 Global's direct
contacts are not sufficient to approximate
physical presence in a way that suggests GS1
Global

A. Solicitation Within Wisconsin


Edgenet is not able to establish that GS1
Global undertook solicitation or service
activities in Wisconsin, or that such were
performed on its behalf. The long-arm statute
creates personal jurisdiction where there is an
injury within Wisconsin by means of an outof-state act so long as, at the time of injury,
"[s]olicitation or
Page 15
service activities were carried on within
[Wisconsin] by or on behalf of the defendant."
Wis. Stat. 801.05(4)(a). The Wisconsin
Supreme Court has stated that while a single

Page 14

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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

business-related, it would make little sense


for the term "service" to have no businessrelated meaning. GS1 Global's responses via
its website to input volunteered by companies
around the world are not service activities.
GS1 Global is in no way obligated to make
these responses and they do not provide
participating companies with a benefit other
than potentially better-crafted standards
sometime
in
the
future.
Moreover,
participants are not entitled to the potentially
improved standards by virtue of participation
in the GSMP; they still must pay fees to use
the GDSN. It would be too strained a reading
of the statute to characterize GS1 Global's
responses to internet messages, part of a
voluntary, collaborative standards-setting
process, as a service provided by it to each
individual Wisconsin company that chooses
to participate in the GSMP.

tortious act may be sufficient to permit the


exercise of jurisdiction in accord with due
process, this subsection "require[s] an
additional contact." Fields v. Peyer, 250
N.W.2d 311, 315 (Wis. 1977). The court
further explained that the rationale of the
solicitation element is that "where a
defendant solicits or advertises for business,
he anticipates a direct or indirect financial
benefit and subjects himself to the
jurisdiction of the courts of the state in which
he advertises." Id. at 316. As the Western
District of Wisconsin has noted, the
"solicitation" term has generally been equated
with advertising, promoting, or selling
products or services. Fried v. Surrey
Vacation Resorts, Inc., No. 08-CV-534, 2009
WL 585964, at *3 (W.D. Wis. Mar. 6, 2009).
GS1 Global disputes only the occurrence of
solicitation or service activities. As is evident
from the text of the provision, either direct
activities or activities performed on behalf of
the defendant may suffice. Edgenet argues
both.

GS1 Global's role in the GSMP cannot be


properly characterized as solicitation either.
While GS1 Global, through the existence of
the Community Room as a method for
participating in the GSMP, may passively
"invite" the participation of GDSN users from
around the world, the court does not find this
sufficiently
analogous
to
the
active
solicitation through advertising or other
direct contact undertaken within Wisconsin
to satisfy the statute. Further, this
"solicitation" does

1. Direct Activities
First, Edgenet argues that GS1 Global
engaged in the requisite solicitation or service
activities by operating its interactive website,
soliciting new and amended rules through the
GSMP, and developing and administering the
GDSN. Edgenet's reference to the operation
of the website seems primarily tied to the
GSMP and the administration of the GDSN,
as these are the primary interactive elements
Edgenet

Page 17
not anticipate financial benefit for GS1 Global
because, even after rules developed through
the GSMP are implemented in the GDSN, it is
GS1 GDSN to whom companies pay
subscription fees in order to participate in the
GDSN. In sum, the availability of the GSMP
through GS1 Global's website is not conduct
actively
requesting
or
seeking
the
participation of Wisconsin residents with the
anticipation of financial benefit.

Page 16
has repeatedly discussed. The existence of the
website in and of itself is not specifically a
solicitation or service activity conducted in
Wisconsin.
Neither is the ability to participate in the
GSMP a solicitation or service activity
conducted in Wisconsin. Given the
interpretation of "solicitation" as being

Edgenet's argument with regard to GS1


Global's
development
and
general
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administration of the GDSN similarly fails. To


be clear, while Edgenet uses the term
"administration" in its arguments, it appears
to actually refer to the fact that GS1 Global
controls the standards used in the GDSN in
an overarching manner. The daily operation
of the GDSN is in fact controlled directly by
GS1 GDSN. With that cleared up, the
development and general administration of
the GDSN is not itself a service carried out in
Wisconsin because GS1 Global is not
performing the acts for the benefit of any
Wisconsin resident. Instead, GS1 Global has
independently developed a system that
companies may choose to use, but until any
actual use of the GDSN occurs, the overall
development and administration of the
network is no more a service than is the
research, design, and manufacture of a
product that a company hopes to later sell.
Moreover, Edgenet and others in Wisconsin
may make use of the GDSN within Wisconsin,
but GS1 Global's activities in developing and
administering the network do not occur in
Wisconsin. To the extent that access to

2. Activities On Behalf of GS1 Global


Next, Edgenet argues that the activities of
GS1 GDSN and GS1 U.S. may be imputed to
GS1 Global, that is, they have carried out
solicitation or service activities in Wisconsin
on behalf of GS1 Global. Wisconsin has
equated the "on behalf of" language with the
existence of an agency relationship. Pavlic v.
Woodrum, 486 N.W.2d 533, 535 (Wis. App.
1992); see also Stauffacher v. Bennett, 969
F.2d 455, 458 (7th Cir. 1992); Schimpf v.
Gerald, Inc., 2 F. Supp. 2d 1150, 1162-63
(E.D. Wis. 1998); Insolia v. Philip Morris,
Inc., 31 F. Supp. 2d 660, 671-72 (W.D. Wis.
1998). The requisite agency exists where the
defendant manifests to the agent that they
may act on the defendant's account. Pavlic,
486 N.W.2d at 535. Alternatively,
Page 19
apparent authority to act may exist where a
third party reasonably believes the defendant
consented to have the act done on its behalf
by the apparent agent. Id. More specifically,
apparent authority exists upon establishing:
(1) acts by the agent or defendant justifying a
belief in the agency; (2) knowledge of the acts
by the defendant; and (3) reasonable reliance
on the existence of the relationship by the
plaintiff. Insolia, 31 F. Supp. 2d at 671.
However, "[b]y itself, the mere existence of a
parent-subsidiary relationship is insufficient
to
establish
that
a
principal-agent
relationship exists between the two entities."
Id. What's more, the requirement that the
defendant anticipate a financial benefit
remains intact. See Schimpf, 2 F. Supp. 2d at
1162-63 (holding solicitation on behalf of
defendant existed where agent solicited
money for investment with defendant).

Page 18
and the ability to use the GDSN is itself a
service, that is controlled by GS1 GDSN, not
GS1 Global.
Edgenet makes little argument that
development and overarching control of the
GDSN is a form of solicitation other than in
its original brief (Docket #19) in which it
argues that GS1 Global's website contains
information about how to join the GDSN and
provides a link to an application site. The
cited evidence (Rudolph Decl. 29 & Ex. 12),
however, reflects at most a passive referral to
separate entities that actually enable a
company to join the GDSN. Nothing about
the links on GS1 Global's website suggest
direct solicitation within Wisconsin. As such,
Edgenet has not sufficiently shown that GS1
Global has directly carried on solicitation or
service activities within Wisconsin.

Edgenet offers the following in order to


establish an agency relationship between GS1
Global and GS1 GDSN: (1) authority granted
to GS1 GDSN to enter participation
agreements with GDSN users, conferring the
right to use the GDSN; (2) entrustment of the
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way to read the fees ultimately being paid to


GS1 GDSN as a financial benefit to GS1 Global
is to impermissibly assume such on the basis
of the parent-subsidiary relationship. Not
only is this improper, but

maintenance and operation of the Global


Registry to GS1 GDSN for which GS1 Global
exercises some policy making authority over;
(3) GS1 Global has informed GS1 GDSN not to
undertake policies or actions unless ratified
by GS1 Global; and (4) GS1 Global plans to
eliminate or reduce GS1 GDSN's role in GDSN
activities. It also asserts that GS1 U.S. is an
agent because it is the sole source of company
prefixes in the U.S. However, because the
court finds the financial benefit requirement
lacking, the actions of GS1 GDSN and GS1
U.S.

Page 21
in this case may not even be accurate. As
Edgenet itself has pointed out, GS1 Global has
had to loan money to GS1 GDSN to cover
shortfalls in revenue. This tends to show
separate accounting practices. As to GS1 U.S.,
that organization is not even alleged to be a
subsidiary of GS1 Global. Edgenet has
likewise shown nothing to suggest that GS1
U.S.'s activities financially benefit GS1 Global.
Thus, Edgenet's argument fails for a lack of
financial benefit to GS1 Global.

Page 20
cannot be considered solicitation or service
activities on behalf of GS1 Global. Edgenet
glosses over the requirement, briefly asserting
that GS1 Global benefits from the activities of
both alleged agents and citing as an example
the fact that GDSN users who execute
participation agreements with GS1 GDSN
must join a data pool to whom the user pays a
fee, and the data pool in turn pays
subscription fees to GS1 GDSN. This is clearly
a financial benefit to GS1 GDSN, but it does
not evidence a financial benefit to GS1 Global.
The fact that a corporation's subsidiary
financially benefits cannot satisfy the
requirement as to the parent. The purpose of
allowing jurisdiction on the basis of acts by an
agent is to avoid allowing a defendant to
escape jurisdiction by indirectly performing
activities that would normally permit
jurisdiction. Because direct solicitation or
service activities must be done in anticipation
of financial benefit to the defendant, it follows
that such activities performed on behalf of the
defendant must similarly be done in
anticipation of financial benefit to the
defendant.7 If there is no financial benefit to
the defendant, then the activity is not truly
being performed on behalf of the defendant.
For example, it would make little sense to
impute the activities of an "agent" to the
defendant on the theory that the defendant
authorized, or apparently authorized, the
"agent" to conduct its own affairs. The only

In fact, a lack of financial benefit to GS1


Global seems to undermine the claim of
agency itself. Imputation of a solicitation or
service activity performed by a subsidiary that
only financially benefits the subsidiary does
little more than obscure the fact that activity
is essentially being imputed on the basis of
the parent-subsidiary relationship alone. That
relationship is not sufficient to permit
jurisdiction. In sum, Edgenet has not shown
that GS1 GDSN or GS1 U.S. performed
solicitation or service activities in Wisconsin
on behalf of GS1 Global.
B. Services Performed by Edgenet
for GS1 Global
GS1 Global is likewise not subject to
jurisdiction under 801.05(5)(b). Wisconsin
permits the exercise of jurisdiction where the
action "[a]rises out of . . . services actually
performed for the defendant by the plaintiff
within [Wisconsin] if such performance
within [Wisconsin] was authorized or ratified
by the defendant." Wis. Stat. 801.05(5)(b).
With regard to the services required, the
Wisconsin Supreme Court has cited the
revision notes for subsection (5) to explain
that:
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for the benefit of GS1 Global. While GS1


Global indeed develops and even likely
encourages adoption of a standardized system
for exchanging supply chain information,
Edgenet operates as a certified data pool
provider in order to

Page 22
Three jurisdictional facts are
required by this subsection: (I)
a claim arising out of a
bargaining arrangement made
with the defendant by or on
behalf of the plaintiff; (ii) a
promise or other act of the
defendant, made or performed
anywhere, which evidences the
bargaining arrangement sued
upon; and (iii) a showing that
the arrangement itself involves
or
contemplates
some
substantial connection with the
state. . . . In summary[,] actions
arising
out
of
isolated
bargaining transactions have
been regarded as supporting the
exercise of personal jurisdiction
in numerous situations where
the transactions involved, or
contemplated, some substantial
contact with the forum state.

Page 23
profit, not to benefit GS1 Global. Edgenet
performs its data pool services on behalf of
the companies that use its data pool; GS1
Global, at best, indirectly benefits in the sense
that its standards have been adopted. In fact,
the structure of Edgenet's complaint
illustrates this point. The general theme of
Edgenet's allegations have been that the
defendants purposely misappropriated and
misused Edgenet's material, which is offered
and incorporated into its data pool services in
addition to the standards administered by
GS1 Global. Edgenet has pointed out that this
misappropriated material provides it with a
leg up in the competition against defendant
1Sync, Inc., a data pool provider which is a
subsidiary of GS1 U.S., a member
organization of GS1 Global. Thus, Edgenet's
own complaint paints a picture of data pool
services provided, albeit indirectly, in
competition with GS1 Global rather than for
its benefit. Thus, operation of a certified data
pool is insufficient to satisfy subsection
(5)(b).

Flambeau Plastics, Corp. v. King Bee Mfg.


Co., 129 N.W.2d 237, 240-41 (Wis. 1964),
overruled in part on other grounds by 131
N.W.2d 331 (Wis. 1964); see also Pavalon v.
Fishman, 140 N.W.2d 263, 265 (Wis. 1966)
(quoting the three jurisdictional facts from
the revision notes and citing Flambeau).
Wisconsin cases applying subsection (5)(b)
tend to involve services in the sense of
contractual
or
other
business-related
performance. E.g. Regal Ware, Inc. v. TSCO
Corp., 558 N.W.2d 679, 681-82 (Wis. App.
1996); Landreman v. Martin, 530 N.W.2d
62, 66 (Wis. App. 1995); Brown v. LaChance,
477 N.W.2d 296, 303 (Wis. App. 1991).
Edgenet argues two methods of performing
services for GS1 Global: (1) Edgenet's
operation as a GS1-certified data pool
provider; and (2) Edgenet's participation in
the GSMP.

Likewise, Edgenet's participation in the


GSMP does not constitute a service
performed for GS1 Global's benefit. A review
of cases in which Wisconsin courts have
applied subsection (5)(b), as well as the
explanation in the revision notes, show that
the type of action taken by Edgenet here is
not properly a service within the meaning of
the statute. Here, Edgenet has shown only
that users of the GDSN are permitted to
access a specific portion of GS1 Global's
website and participate in a process to
improve standards. While GS1 Global may
benefit in an abstract way from the

Edgenet's operation of a certified data


pool does not constitute a service performed
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participation of companies in strengthening


the standards it administers,

requirements from Calder v. Jones, in which


the Supreme Court held that personal
jurisdiction in California existed over both a
reporter for, and the president and editor of,
the National Enquirer, both of whom resided
in Florida. Calder v. Jones, 465 U.S. 783
(1984). Before recounting the Seventh
Circuit's treatment of Calder, it is first worth
relaying what the Supreme Court itself said in
that case:

Page 24
there is no evidence that GS1 Global has
entered bargaining arrangements with each
company contemplating some type of service
agreement. GS1 Global is free to adopt or
ignore suggestions or other input given by
companies participating in the GSMP, just as
GDSN users are in no way compelled to
participate in the GSMP. Further, there is no
showing that the communications that occur
through the GSMP in any way show that GS1
Global has entered individual arrangements
with each participant that contemplate a
substantial connection with the company's
given state. It is clear that subdivision (5)(b)
does not cover participation in the GSMP. In
sum, 801.05(5)(b) does not permit the
exercise of jurisdiction under these facts.

The allegedly libelous story


concerned
the
California
activities
of
a
California
resident. It impugned the
professionalism
of
an
entertainer whose television
career
was
centered
in
California. The article was
drawn from California sources,
and the brunt of the harm, in
terms both of the respondent's
emotional distress and the
injury to her professional
reputation, was suffered in
California. In sum, California is
the focal point both of the story
and of the harm suffered.
Jurisdiction over petitioners is
therefore proper in California
based on the "effects" of their
Florida conduct in California.

C. Due Process
As a final matter, even if these activities
were sufficient under Wisconsin's long-arm
statute, the exercise of specific jurisdiction
here would violate due process. In order to
satisfy due process, the defendant must have:
(1) purposefully directed the activity at the
forum state or purposefully availed itself of
the privilege of conducting business therein;
(2) the injury must arise out of the forumrelated activities; and (3) the exercise of
jurisdiction must comport with traditional
notions of fair play and substantial justice.
Tamburo, 601 F.3d at 702. More specifically,
purposeful direction can be broken into three
elements: "(1) intentional conduct (or
'intentional and allegedly tortious' conduct);
(2) expressly aimed at the forum state; (3)
with the defendant's knowledge that the
effects would be felt - that is, the plaintiff
would be injured - in the forum state." Id. at
703. The Seventh Circuit drew these

Id. at 788-89. The Seventh Circuit noted that


Calders "express aiming" requirement has
been read both broadly, to require only
conduct targeted at a plaintiff known to be a
resident of the forum state, and narrowly, to
require the state be the "focal point" of the
conduct. Tamburo, 601 F.3d at 704. In fact,
the Tamburo court noted that the circuit's
own prior decisions appeared to be in tension
on this point. Id. In one, the Seventh Circuit
held jurisdiction was not proper in Indiana
for malicious prosecution where that conduct
occurred solely in California, despite the fact
that the plaintiff resided in Indiana and was
thus harmed there. Wallace v. Herron, 778
F.2d 391, 395 (7th Cir. 1985). In Wallace, the

Page 25
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Seventh Circuit decided that Calder did not


alter the requirement that jurisdictionally
sufficient conduct must create a "substantial

Janmark with the other two cases if it was


understood to broadly authorize jurisdiction
wherever injury occurred. Tamburo, 601 F.3d
at 705. The court,

Page 26
Page 27
connection" with the forum. 778 F.2d at 395;
Tamburo, 601 F.3d at 705 (citing Wallace).

however, read further into Janmark,


recognizing that, despite some of its broad
language, it ultimately focused on more than
just the location of injury and "considered the
relationship between the allegedly tortious
conduct and the forum state itself." Id. at 706.
However, the Seventh Circuit once again
found it unnecessary to definitively decide the
breadth of Calder because it found both a
forum-state injury as well as the tortious
conduct having been specifically directed at
the forum, "making the forum state the focal
point of the tort." Id. In Tamburo, an Illinois
resident brought suit against residents of
Canada, Colorado, Michigan, Ohio, and
Australia for actions taken accusing the
plaintiff of stealing their data and urging
boycott of the plaintiff's software products.
Id. at 697. These activities took place through
"blast" emails and posts on the defendants'
websites. Id.8 The messages variously
encouraged readers to boycott the plaintiff's
products, as well as to contact and harass the
plaintiff. Id. at 706. The defendants also
contacted the plaintiff directly, accusing him
of theft and demanding removal of stolen
data, as well as threatening to expose the theft
to the online community. Id. The court found
jurisdiction over the Canadian, Coloradan,
Michigander, and Ohioan, citing to a Tenth
Circuit case for further support, and writing
that "the individual defendants purposely
targeted [the plaintiff] and his business in
Illinois with the express goal of inflicting
commercial and reputational harm on him
there, even though their alleged

In the other relevant case, the Seventh


Circuit stated that "there can be no serious
doubt after [Calder] that the state in which
the victim of a tort suffers the injury may
entertain a suit against the accused
tortfeasor." Janmark, Inc. v. Reidy, 132 F.3d
1200, 1202 (7th Cir. 1997). The Tamburo
court also discussed a case relied on in
Janmark, wherein the National Football
League's Indianapolis Colts sued the
Canadian Football League's Baltimore Colts
in Indiana for copyright infringement.
Indianapolis Colts, Inc. v. Metro. Baltimore
Football Club Ltd. P'ship, 34 F.3d 410 (7th
Cir. 1994). In Indianapolis Colts, the court
found jurisdiction proper on the basis of the
injury occurring in Indianapolis, as well as
"entry" into Indiana by the Baltimore Colts on
the basis of cable-television broadcasts of
their games in Indiana. Id. at 412. Without
deciding whether "entry" into the state, in
addition to the injury, was required, the
Indianapolis Colts court noted that:
In Calder as in all the other
cases that have come to our
attention in which jurisdiction
over a suit involving intellectual
property (when broadly defined
to include reputation, so that it
includes Calder itself) was
upheld, the defendant had done
more than brought about an
injury to an interest located in a
particular state.

Page 28

Id.

defamatory and otherwise tortious statements


were circulated more diffusely across the
Internet." Id. at 707.

Analyzing all three cases, the Tamburo


court wrote that it would be hard to reconcile
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

or nearly world-wide character) is not


analogous to the passive world-wide reach of
a website. A broadcast deal is established to
target a specific market, often for a variety of
reasons (such as advertising revenue), and it
is a calculated decision made in an attempt to
reach that forum. Thus, even though a nationwide broadcast makes the conduct much
more generally available, the deal is done
with the intent of reaching into each given
state. A website, however, is accessible worldwide by its inherent nature.10 There is no
particularized decision to enter each forum
that has access to the internet; there is only a
decision to create a presence on the internet.
Thus, similar to how the existence of a
website alone cannot support general
jurisdiction, a website cannot be viewed as a
purposeful entry into each and every

Here, Edgenet has alleged that the


defendants posted proprietary material on
GS1 Global's website, which is alleged to
constitute copyright infringement as well as
misappropriation of trade secrets. But, even if
the complaint is read liberally enough to
conclude that GS1 Global's conduct can be
characterized as having posted the material,9
it is not sufficient to show that the conduct
was purposefully directed at Wisconsin.
Looking to whether GS1 Global expressly
aimed the posting of the material at
Wisconsin, there is little doubt that Edgenet
allegedly suffered an injury in the state.
However, the court reads Calder, through the
lens of Tamburo, to require more than the
alleged victim's presence in a given state.
Instead, the court must ensure that
Wisconsin was the "focal point" of the
activity, here the posting of the allegedly
misappropriated materials. Based upon the
submitted affidavits and the complaint, that is
not the case. Posting of the material on GS1
Global's website made it generally available to
companies located anywhere in the world.
The posted material was not, for example,
solely or primarily of use only to

Page 30
forum in the world. Instead, something about
the conduct occurring on the website must
indicate it was purposefully directed at the
forum. That is lacking here. To reiterate,
nothing about the simple posting of allegedly
infringing material, beyond the location of the
victim, indicates that the action was focused
on Wisconsin. That is not enough to make the
state the focal point of GS1 Global's activity
and, therefore, Edgenet has failed to show
that GS1 Global purposefully directed its
conduct toward Wisconsin.11 Thus, the
exercise of specific jurisdiction under these
circumstances would violate due process.

Page 29
competitors or companies in Wisconsin, nor
is there anything else to suggest that the
posting of this material was done to explicitly
reach Wisconsin. The only connection with
Wisconsin apparent from the submitted
materials is Edgenet's presence in the state.
Indianapolis Colts provides a useful
comparison by looking at the difference
between posting materials to a generally
accessible website versus entry into a state by
means
of
television
broadcasts.
In
Indianapolis Colts, the defendant entered
Indiana by means of broadcasts because each
broadcast specifically communicated the
infringing trademark to residents of the
forum state. While broadcast deals can
certainly be national in scope, that national
character (or even hypothetically world-wide

III. CONCLUSION
At the end of the day, Edgenet has failed
to establish that either general or specific
personal jurisdiction over GS1 Global is
proper in Wisconsin. GS1 Global's contacts
with Wisconsin are not of sufficient nature
and quality to approximate presence in such a
way as to subject it to jurisdiction for any
cause of action. Further, Edgenet has not
shown that GS1 Global has directly carried
out solicitation or service activities in the
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Edgenet, Inc. v. GS1 U.S. Inc. (E.D. Wis., 2011)

W3Schools.com,
http://www.w3schools.com/xml/xml_whatis
.asp (last visited June 14, 2011).

state, or that such have been carried out on its


behalf. Edgenet also does not satisfy the
provision permitting jurisdiction where a
plaintiff performs services in the state on
behalf of the defendant. Moreover, even if any
of these specific-jurisdiction provisions were
satisfied, the exercise of specific jurisdiction
would not comport with due process. Thus,
the court will grant GS1 Global's motion to
dismiss.

2.A

data pool is a central repository that


aggregates, organizes and delivers data
between trading partners. For further
description, see the court's September 27,
2010 Order (Docket #67).
Jurisdiction may also exist if the federal
statute permits nationwide service or if the
defendant is not otherwise subject to personal
jurisdiction in any state, Fed. R. Civ. P. 4(k),
but neither condition exists here.
3.

Page 31
Accordingly,
IT IS ORDERED that defendant GS1
AISBL's Motion to Dismiss for Lack of
Jurisdiction (Docket #87) be and the same is
hereby GRANTED; and

4.Arnold

v. Miller, No. 08-234, 2009 WL


2020838, at *3-5 (S.D. Ill. July 9, 2009);
Shepherd Invs. Int'l v. Verizon Commc'ns
Inc., 373 F. Supp. 2d 853, 862-66 (e.D. Wis.
2005); Thomas Publ'g Co. v. Indus. Quick
Search, Inc., 237 F. Supp. 2d 489, 491
(S.D.N.Y. 2002); PKWare, Inc. v. Meade, 79
F. Supp. 2d 1007, 1012-14 (E.D. Wis. 2000);
see also PKWare, 79 F. Supp. 2d at 1013
("each case must be determined on its own
facts").

IT IS FURTHER ORDERED that


Counts Six and Seven of the Second Amended
Complaint (Docket #43) as against defendant
GS1 AISBL be and the same are hereby
DISMISSED for want of personal
jurisdiction.
Dated at Milwaukee, Wisconsin, this 27th
day of June, 2011.

5.The

court notes that unpublished


appellate opinions may not be cited in
Wisconsin as precedent, but so long as an
unpublished opinion was issued on or after
July 1, 2009, it may be cited for persuasive
value. Wis. Stat. 809.23(3). Thus, despite
the fact that Rasmussen is not binding on
Wisconsin courts, it remains a stronger
indication of Wisconsin law than prior
decisions from this district attempting to
divine how a Wisconsin court would rule.

BY THE COURT:
J.P.
U.S. District Judge

Stadtmueller

-------Notes:
1. XML stands for Extensible Markup
Language and is a markup language similar to
HTML, the coding language used to craft and
display websites. XML, however, is a language
used to transport and store data, unlike
HTML which is only used to display data.
Thus, XML depends on other software or
processes to send, receive, or display the data
encoded by XML. For further information, see
XML Introduction - What is XML?,

6.In

fact, the court is skeptical that


contacts occurring by means of a website are
sufficient additional contacts to support the
exercise of jurisdiction when combined with
the existence and accessibility of the website
itself. However, it need not decide such, as it
finds the contacts insufficient even when
considered.

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7.This

is not to say that the agent may not


simultaneously derive its own financial
benefit from the activity.
8.The

plaintiff also alleged that the


Australian defendant reposted messages to a
private email listserv, but the court found a
lack of personal jurisdiction over the
Australian defendant for a whole host of
reasons primarily involving a lack of detail in
the complaint, making that aspect less
applicable here. See id. at 708.
9.It

is questionable the complaint can


even be read in such a way. Though Edgenet
asserts in its brief that GS1 Global
intentionally posted the material on its
website, the complaint itself suggests only
that defendants GS1 U.S., 1Sync, Inc., and
American
Hardware
Manufacturers
Association
obtained
the
proprietary
information, created derivative works, and
posted it to GS1 Global's website. (Second
Am. Compl. 75-94). At the end of Edgenet's
recitation of improper conduct, it adds a oneparagraph allegation that GS1 Global
"supervised, facilitated, approved, and has
been unjustly enriched" by the activity of the
other three defendants. (Second Am. Compl.
95). While this is not meant as a comment
on whether GS1 Global can be held liable for
copyright infringement or misappropriation
of trade secrets, it would bear on whether GS1
Global's activity was directed at Wisconsin.
However, the court finds it unnecessary to
make the determination.
10.With

certain exceptions, such as


censorship or other blocking that may be
performed by particular governments or
other entities that have the ability to control
internet traffic.
11.Neither

has Edgenet made an argument


for purposeful availment, and it would not
succeed in any event, as reasoned with regard
to Wisconsin's long-arm statute.

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