Daniel J. Hartwig Associates, Inc. v. Kanner

Decision Date19 September 1990
Docket NumberNo. 88-1883,88-1883
Citation913 F.2d 1213
PartiesDANIEL J. HARTWIG ASSOCIATES, INC., Plaintiff-Appellee, v. Allan KANNER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Harry E. VanCamp, Louderman, Hayes & VanCamp, Madison, Wis., for plaintiff-appellee.

Scott T. Herrick, Reynolds, Gruber, Herrick, Flesch & Kasdorf, Madison, Wis., Allan Kanner, Eunice Trevor, Kanner & Associates, Philadelphia, Pa., for defendant-appellant.

Before POSNER, COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Daniel J. Hartwig Associates, Inc., is an environmental consulting firm that rendered consulting and expert witness services to Allan Kanner, an attorney whose practice is limited to environmental and toxic injury litigation. After Kanner failed to pay Hartwig for its services, Hartwig filed a breach of contract suit in federal district court. The district court directed a verdict in favor of Hartwig in the amount of $44,225.04. Kanner appeals on three grounds: (1) he contends that the district court did not have personal jurisdiction over him; (2) he contends that the district court erred in directing a verdict because a material issue of fact existed as to whether he owed Hartwig for its services; and finally, (3) he contends that the district court denied him due process because the court did not grant a continuance to allow additional time for discovery purposes. Having found none of these three grounds persuasive we affirm the decision of the district court. We will discuss the relevant facts as they pertain to each of Kanner's claims.

Personal Jurisdiction

Hartwig Associates is a corporation organized under the laws of Wisconsin with its principal place of business located in Oregon, Wisconsin. Kanner is a resident of Pennsylvania and maintains law offices in Philadelphia, Pennsylvania, and Vinland, New Jersey. Hartwig Associates initiated this action against Kanner in the United States District Court for the Western District of Wisconsin. Subject matter jurisdiction was based on diversity of citizenship under 28 U.S.C. Sec. 1332. 1 Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, Kanner moved to have the action dismissed contending that the district court did not have personal jurisdiction over him. The district court denied the motion. Kanner appeals this denial.

Daniel J. Hartwig, the principal owner of Hartwig Associates, first met Allan Kanner in Madison, Wisconsin, while they were both working on a lawsuit unrelated to this litigation. Kanner expressed an interest in Hartwig's services and suggested that Hartwig send him a resume and some information about his firm's environmental consulting services. Hartwig mailed Kanner a resume. At a later date, Kanner phoned Hartwig and asked Hartwig if he was interested in working for Kanner as a consultant on a case filed in Tennessee. Kanner sent Hartwig some materials to review; after reviewing those materials, Hartwig agreed by phone to work as a consultant for Kanner in the Tennessee case.

Kanner subsequently solicited and employed Hartwig to perform services in two additional lawsuits. Hartwig worked as a consultant on another case filed in Tennessee and as an expert witness in a case filed in California. All three cases required Hartwig to travel (at Kanner's expense) to Tennessee and California and conduct investigations of certain sites as part of Hartwig's environmental consultation. Hartwig also traveled to Kanner's office in Philadelphia where all strategy conferences were held. In connection with each lawsuit, Kanner sent voluminous documentation to Oregon, Wisconsin, for Hartwig to review and comment upon. Hartwig estimated that 75% or more of the time he spent on each case was devoted to research and preparation in Oregon, Wisconsin.

A federal district court sitting in a diversity case has personal jurisdiction over a non-consenting, nonresident defendant if a court of the state in which the district court sits would have personal jurisdiction. Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 279 (7th Cir.1990); Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 664 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987); Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1362 (7th Cir.1985). Whether a Wisconsin state court would have jurisdiction over Kanner is a two-step inquiry. First, we must determine whether the law of Wisconsin--specifically, the Wisconsin long-arm statute--subjects Kanner to in personam jurisdiction. Giotis, 800 F.2d at 665; Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., Inc., 597 F.2d 596, 598-99 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980). If the answer is yes, we must then determine whether the exercise of jurisdiction under the long-arm statute runs afoul of the due process requirements of the fourteenth amendment. Heritage House, 906 F.2d at 283; Giotis, 800 F.2d at 665.

The Wisconsin long-arm statute provides in pertinent part:

A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action under any of the following circumstances:

* * * * * *

(5) Local services, goods or contracts. In any action which:

(a) Arises out of a promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff's benefit, by the defendant to perform services within this state or to pay for services to be performed in this state by the plaintiff; or

(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; ....

Wis.Stat. Sec. 801.05.

Either section of the statute clearly encompasses the type of transaction Kanner and Hartwig entered into. The long-arm statute requires only that some services were contemplated to be or actually were performed in Wisconsin. Kanner contends that he and Hartwig did not contemplate that "substantial" performance of the contract would occur in Wisconsin. Likewise, Kanner contends that the contract was not "substantially" performed in Wisconsin. However, Kanner does not claim that he and Hartwig did not contemplate some performance of the contract in Wisconsin. (Such a claim would be unrealistic anyway, given the fact that Hartwig's sole office is located in Wisconsin). Nor does Kanner dispute the fact that Hartwig actually did perform some of the contract in Wisconsin. In addition, it is obvious that Kanner "ratified" this performance--Kanner sent a substantial amount of material to Hartwig's place of business in Oregon, Wisconsin, for Hartwig to review; however, Kanner in no way indicated that Hartwig was to review this material outside of Wisconsin.

Up to this point, we have determined that the long-arm statute is intended to cover the type of transaction that Hartwig and Kanner entered into. Further construction regarding the scope of the statute is not necessary. Unlike the long-arm statutes of some states, the Wisconsin statute is intended to reach to the fullest extent allowed under the due process clause. See e.g., State ex rel. N.R.Z. v. G.L.C., 152 Wis.2d 97, 103-05, 447 N.W.2d 533, 535 (1989); Lincoln v. Seawright, 104 Wis.2d 4, 9-11, 310 N.W.2d 596, 599 (1981); Stevens v. White Motor Corp., 77 Wis.2d 64, 73-75, 252 N.W.2d 88, 93 (1977). 2 Thus, if personal jurisdiction over Kanner is consistent with due process, it was intended under the long-arm statute. Accordingly, we will proceed to the second part of our analysis; that is, we will determine whether the due process clause allows a Wisconsin court to exercise personal jurisdiction over Kanner under the particular circumstances of this case.

In order to assert personal jurisdiction over a nonresident defendant consistent with due process, the defendant must have purposefully availed himself of the privilege of conducting activity within the forum state, thus invoking the benefits and the protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson 44 U.S. 286, 294-95, 100 S.Ct. 559, 565-66, 62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). The requirement of purposeful availment protects the defendant's interest in not being subject to the binding judgments of a forum state in which the defendant has not established "meaningful contact, ties or relations." Burger King, 471 U.S. at 471-72, 105 S.Ct. at 2181; International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945).

In determining whether a defendant has purposefully availed himself of the benefits and protections of a given state, the defendant's conduct and contacts with the forum state must be such that he could reasonably anticipate being subjected to suit there. Burger King, 471 U.S. at 474, 105 S.Ct. at 2183; World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. Thus, the main factor in the due process analysis is "foreseeability" of being subjected to suit in the forum state. Heritage House, 906 F.2d at 283. Contacts with the forum state that are merely "random," "fortuitous," or "attenuated" are not sufficient to establish that jurisdiction was foreseeable to the defendant. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984). With these principles in mind, we turn to the specific circumstances of this case.

Two significant factors lead us to conclude that Kanner could reasonably foresee being subject to suit in a Wisconsin court. First, Kanner solicited Hartwig's services. Second, and more important, Kanner solicited...

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