Carlson v. Fid. Motor Grp., LLC

• Citation: 360 Wis.2d 369,860 N.W.2d 299
• Decision Date: 14 January 2015
• Docket Number: No. 2014AP695.,2014AP695.
• Parties: Eric D. CARLSON, Plaintiff–Appellant, v. FIDELITY MOTOR GROUP, LLC, Defendant–Respondent.
• Court: Court of Appeals of Wisconsin

360 Wis.2d 369

860 N.W.2d 299

Eric D. CARLSON, Plaintiff–Appellant

v.FIDELITY MOTOR GROUP, LLC, Defendant–Respondent.

No. 2014AP695.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 20, 2014.

Opinion Filed Jan. 14, 2015.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Eric D. Carlson, Esq., Mequon.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael S. Kenitz of Kenitz Law Office LLC, Hartford.

Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.

Opinion

GUNDRUM, J.

¶ 1 Eric Carlson appeals from an order of the circuit court dismissing his lawsuit against Fidelity Motor Group, LLC, related to his purchase of a 2006 BMW automobile from Fidelity. He contends the court erred in concluding it did not have personal jurisdiction over Fidelity, arguing that Fidelity's “advertisements on third party web sites and phone conversation with [him] meet the minimum contacts requirement” that must be satisfied for Wisconsin courts to have personal jurisdiction. We conclude that such advertisements and conversation did not meet the minimum contacts requirement and therefore are insufficient to establish jurisdiction. We affirm.

Background

¶ 2 Carlson commenced this lawsuit in Ozaukee County, Wisconsin, alleging “fraud by wire” and “negligent representation” by Fidelity related to his purchase of the BMW. Fidelity moved the circuit court for dismissal for lack of personal jurisdiction. Each party submitted an affidavit. Exhibits submitted with Carlson's affidavit include “screenshots” of Fidelity's own website and its advertisements on fourteen other websites, including “cars.com,” and a copy of a portion of a cell phone bill showing phone calls made on March 16, 2013.

¶ 3 The relevant, undisputed allegations from Carlson's complaint and facts as averred in his affidavit and exhibits in opposition to Fidelity's motion to dismiss are as follows. Carlson is a resident of Wisconsin and Fidelity is an automobile dealership located in Illinois. On March 16, 2013, Carlson observed on his wife's cell phone a Fidelity advertisement for the BMW on the cars.com website. He called Fidelity's toll-free number listed on the website and spoke with a Fidelity representative for approximately four minutes, during which time the representative told Carlson the vehicle was in excellent condition with no known mechanical problems. The representative called Carlson back two hours later and spoke with him for approximately one minute regarding the vehicle.¹ Carlson and his wife traveled to Fidelity that same day. Carlson test drove the BMW and discussed the price with the representative. Both he and his wife requested that Fidelity change the oil at the time of purchase and the representative agreed Fidelity would do that. Fidelity took the vehicle to its service center and the representative indicated to Carlson that the oil had been changed. Carlson purchased the BMW.

¶ 4 Five months later, Carlson experienced problems with and sustained damage to the BMW in Wisconsin, damage which he asserts was caused by the oil not having been changed at the time of purchase as had been represented to him. According to a mechanic who examined the BMW, the oil had not been changed for “tens of thousands of miles.”

¶ 5 Fidelity's affidavit, by its executive vice president, provides the following relevant, undisputed facts. Fidelity is an Illinois limited liability company and has a single facility, located in Illinois, from which it sells motor vehicles. Fidelity has never

owned, used, maintained and had any office or other facility in Wisconsin; ... employed any persons to perform any services or deliver any materials in Wisconsin; ... advertised or purchased any advertisement or solicitation within Wisconsin (except to the extent that [Fidelity's] website is accessible to Wisconsin residents); ... directed any mail or other solicitation to any Wisconsin residents; ... filed suit in any Wisconsin court; ... excepting this case, never been a Defendant in any case in the Wisconsin courts; ... performed any contract within Wisconsin; ... owned, leased or held any interest in any personal property or real estate in Wisconsin[; or] engaged in any business in Wisconsin.

With regard to Carlson's purchase of the BMW, the vice president averred:

[T]he contract for sale was entered into in Illinois ...; delivery of the vehicle was made in Illinois; the Plaintiff and Defendant met at [Fidelity's] facility in Illinois to discuss the sale of the vehicle, sign the contract and make delivery; [and] any and all pre-sale inspections, repair and maintenance of the vehicle was performed in Illinois....

¶ 6 The circuit court granted Fidelity's motion to dismiss after a hearing and Carlson appeals.²

Discussion

¶ 7 Whether a court has personal jurisdiction over an out-of-state defendant is a question of law we review de novo. Johnson Litho Graphics of Eau Claire, Ltd. v. Sarver,

2012 WI App 107, ¶ 6, 344 Wis.2d 374, 824 N.W.2d 127.

¶ 8 On a question of personal jurisdiction over an out-of-state defendant, the plaintiff bears “the minimal burden of establishing a prima facie threshold showing” that the requirements of both constitutional due process and Wisconsin's long-arm statute, Wis. Stat. § 801.05 (2011–12),³ are satisfied. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶ 8, 245 Wis.2d 396, 629 N.W.2d 662 (citation omitted). In reviewing whether this burden has been met, “we may consider documentary evidence and weigh affidavits.” Id. We accept as true all well-pleaded allegations in the complaint, unless controverted by affidavits of the challenging party. Purdue Research Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003). “Factual doubts are to be resolved in favor of the plaintiff,” Kopke, 245 Wis.2d 396, ¶ 8, 629 N.W.2d 662 (citation omitted); however, we must keep in mind that the “focus in a jurisdictional analysis is not on the plaintiff but on the [defendant's] contacts with Wisconsin,” Stayart v. Hance, 2007 WI App 204, ¶ 15, 305 Wis.2d 380, 740 N.W.2d 168.

¶ 9 Before proceeding to the due process question, courts generally begin the jurisdictional analysis by determining if the requirements of the long-arm statute are satisfied. See Kopke, 245 Wis.2d 396, ¶ 8, 629 N.W.2d 662. Where, as here, however, it is clear the due process minimum contacts requirement is not satisfied, we may proceed directly to this issue. See Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F.Supp.2d 1154, 1157 (W.D.Wis.2004) (if due process requirements are not met, need not decide if Wis. Stat. § 801.05 is satisfied).

¶ 10 The due process question presents two considerations. First, we must determine whether the defendant “purposefully established minimum contacts in the forum State.” Kopke, 245 Wis.2d 396, ¶ 23, 629 N.W.2d 662(citation omitted). The plaintiff carries the burden on this inquiry. Id. If this question is answered in the affirmative, we then consider whether the assertion of personal jurisdiction comports with “fair play and substantial justice.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). On this consideration, the defendant bears the burden. Id. Here, we need not wrestle with the latter issue as we conclude Fidelity did not “purposefully establish [ ] minimum contacts” in Wisconsin.

¶ 11 Carlson asks us to determine that Fidelity's “advertisements on third party web sites and phone conversation with [him] meet the minimum contacts requirement.” He directs us to our supreme court's decision in Kopke as support for his position that due process considerations permit Wisconsin courts to exercise personal jurisdiction over Fidelity. In discussing the due process question, the Kopke court stated:

Under the Due Process Clause, personal jurisdiction over a nonresident defendant is proper when the defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Minimum contacts requires that “ ‘the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Essential to each case is “ ‘that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” The “purposeful availment” requirement has become the “baseline,” the primary focus, of the minimum contacts analysis. “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third person.’ ”

Id., ¶ 24 (alteration in original) (citations omitted).

¶ 12 In Kopke, the plaintiff truck driver was injured when he opened a cargo container in Neenah, Wisconsin, and a pallet loaded with paper fell on him. Id., ¶ 2. Workers for an Italian cooperative had placed the pallet of paper into the cargo container prior to its shipping from Italy to Neenah. Id., ¶¶ 2, 4, 6. The truck driver sued the cooperative, among others, which moved to dismiss for lack of personal jurisdiction. Id., ¶ 7.

¶ 13 Although the Kopke court ultimately did conclude the circuit court had personal jurisdiction over the cooperative, see id., ¶ 48, the case is of no help to Carlson. Correctly noting the facts in Kopke, Carlson himself explains in his brief-in-chief that the Kopke court held that Wisconsin had jurisdiction over the cooperative “because the facts showed there was ‘a regular course of dealing that result[ed] in deliveries' of multiple units of the product into [the] forum over a period of years.” Brief for Appellant at 26 (quoting Kopke, 245 Wis.2d 396, ¶ 31, 629 N.W.2d 662). “Specifically,” Carlson further writes, “the records showed that between November 8, 1996 and...