Professional Documents
Culture Documents
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.
3
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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
4
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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.
5
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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)
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.
7
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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.
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
8
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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).
9
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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.
10
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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.
11
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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.,
12
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13
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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.
14
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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
15
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EXHIBIT A
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.
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
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.
Reidsville
(city)
North Carolina
(state/territory)
s/ Sarah Palmer
(signature)
2
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EXHIBIT B
My name is Eric Johnson, and I make these statements based upon my own
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
(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
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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.
Paris
(city)
Tennessee
(state/territory)
s/ Eric Johnson
(signature)
3
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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)
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-
substantial
and
not
isolated
activities
within
this state, whether
such activities are
wholly interstate,
intrastate,
or
otherwise.
...
(d) Is engaged in
-2-
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.
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.
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.
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
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
-1-
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.
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
Integrity's
Page 8
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).
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
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.
Page 14
simply rest on the allegations of the
complaint"). Any factual disputes in the
affidavits are resolved in favor of the plaintiff.
Page 16
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
-6-
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.
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.
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.
(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.
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.
Page 29
the Motion of Criterion and Tingley to
dismiss for lack of personal jurisdiction.
Page 28
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.
Mills
--------
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.
2.It
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.
--------
-11-
Page 2
Standards
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).
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.
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
-3-
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.
-4-
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.
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.
Page 14
-6-
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
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.
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
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).
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.
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
Page 25
-11-
Page 26
Page 27
connection" with the forum. 778 F.2d at 395;
Tamburo, 601 F.3d at 705 (citing Wallace).
Page 28
Id.
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
-13-
W3Schools.com,
http://www.w3schools.com/xml/xml_whatis
.asp (last visited June 14, 2011).
2.A
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
5.The
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
-14-
7.This
--------15-