Rasmussen v. Gen. Motors Corp..
| Decision Date | 01 July 2011 |
| Docket Number | No. 2007AP35.,2007AP35. |
| Citation | 335 Wis.2d 1,2011 WI 52,803 N.W.2d 623 |
| Parties | David RASMUSSEN and Lisa A. Lindsay, Plaintiffs–Appellants–Petitioners,v.GENERAL MOTORS CORPORATION, General Motors of Canada, Ltd., Ford Motor Company, Ford Motor Company of Canada, Ltd., Toyota Motor Corporation, Toyota Motor Sales USA, Inc., Toyota Canada, Inc., Honda Motor Company, Ltd., American Honda Motor Company, Inc., Honda Canada, Inc., Daimler Chrysler, Daimler Chrysler Canada, Inc., Mercedes Benz Canada, Inc., Nissan North America, Inc., Nissan Canada, Inc., BMW of North America, Inc., BMW Canada, National Automobile Dealers Association and Canadian Automobile Dealers Association, Defendants,Nissan Motor Co., Limited, Defendant–Respondent. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiffs-appellants-petitioners there were briefs and oral argument by Owen Thomas Armstrong, Jr., von Briesen & Roper, S.C., Milwaukee.For the defendant-respondent there were briefs and oral argument by Daniel L. Goldberg, Bingham McCutchen, LLP, Boston, MA.An amicus curiae brief was filed by Katherine Stadler, Bryan J. Cahill and Godfrey & Kahn, S.C., Madison and Andrew C. Cook, Madison for the Wisconsin Civil Justice Council, Inc.An amicus curiae brief was filed by Jamison E. Lynch and Mayer Brown LLP, Chicago and Dan Himmelfarb (admitted pro hac vice), Brian J. Wong (admitted pro hac vice) and Mayer Brown LLP, Washington, DC. For the Association of International Automobile Manufacturers, Inc. and the Organization for the International Investment.PATIENCE DRAKE ROGGENSACK, J.
[335 Wis.2d 4] ¶ 1 We review an unpublished decision of the court of appeals 1 affirming the circuit court's 2 order dismissing for lack of personal jurisdiction a defendant, the Japan-based Nissan Motor Company (Nissan Japan), from David Rasmussen's (Rasmussen) class-action lawsuit. The issue presented to this court is whether Wisconsin has general personal jurisdiction over Nissan Japan.3 Accordingly, we are asked to address whether under Wis. Stat. § 801.05(1)(d) (2007–08),4 Wisconsin's long-arm statute granting general personal jurisdiction over individuals engaged in “substantial and not isolated activities within” Wisconsin, Nissan Japan is subject to general personal jurisdiction here. If the answer to that question is yes, we are asked to decide whether the exercise of general personal jurisdiction over Nissan Japan comports with due process.
¶ 2 Rasmussen contends that Wisconsin has general personal jurisdiction over Nissan Japan 5 under Wis. Stat. § 801.05(1)(d) based on the “substantial and not isolated activities” of Nissan North America, Inc. (Nissan North America),6 Nissan Japan's wholly owned subsidiary. For the reasons set out below, we conclude that even assuming arguendo that Nissan North America were the agent of Nissan Japan, absent control by Nissan Japan sufficient to cause us to disregard the separate corporate identities of Nissan Japan and Nissan North America, the activities of the subsidiary corporation are insufficient to subject its nonresident parent corporation to general personal jurisdiction under § 801.05(1)(d). We also conclude that Rasmussen has not met his burden to show that the corporate separateness of Nissan Japan and Nissan North America should be disregarded such that the activities of Nissan North America in Wisconsin should be imputed to Nissan Japan. Accordingly, the statutory prerequisites for general personal jurisdiction under § 801.05(1)(d) have not been met.
¶ 3 Because we conclude that the statutory requirements for general personal jurisdiction have not been met, we need not discuss whether exercising general personal jurisdiction over Nissan Japan comports with due process. Accordingly, we affirm the decision of the court of appeals.
¶ 4 On September 18, 2003, Rasmussen filed a class-action complaint against numerous automobile companies, including Nissan Japan and its wholly owned subsidiary, Nissan North America. The complaint alleges that the automobile company defendants violated Wisconsin's antitrust and conspiracy laws. Namely, Rasmussen alleges that defendants conspired to restrain “competition in the sale and lease of new cars in Wisconsin and throughout the United States” by “eliminat[ing] the import[ing] of [lower priced] new cars from Canada into the United States and thereby rais[ing], fix[ing], stabiliz [ing] or maintain[ing] prices of new automobiles sold or leased in the State of Wisconsin ... at artificially high levels.” 7
¶ 5 The complaint further alleges that in an effort to advance a price-fixing scheme, the defendants required their United States dealers to, among other things, refuse to honor new car warranties on cars imported from Canada and refuse to provide recall information relating to new cars imported from Canada.8 According to the complaint, the defendants required their Canadian car dealers to investigate prospective buyers in an effort to identify buyers who may export the automobiles for resale in the United States, and to refuse to sell to those buyers.9 Rasmussen alleged that Canadian dealers were also required to enter into “No Export” agreements with their customers that required the customer to pay a percentage of the car's value if the car was later found to have been resold in the United States. 10
¶ 6 On December 22, 2003, Nissan Japan moved to dismiss the action against it for lack of personal jurisdiction. With regard to Wis. Stat. § 801.05(1)(d),11 Nissan Japan argued that it fell outside the scope of this provision because it did not engage in any activities, much less substantial activities, in Wisconsin. Moreover, Nissan Japan argued that it was not subject to personal jurisdiction based on the activities of Nissan North America because Nissan Japan and Nissan North America are separate and distinct corporations, with their own respective employees, facilities and records. In addition, Nissan Japan maintained that Nissan North America has never been an agent or instrumentality of Nissan Japan.
¶ 7 On April 5, 2004, a hearing was held on Nissan Japan's motion to dismiss for lack of personal jurisdiction. Following the hearing, the circuit court 12 denied Nissan Japan's motion without prejudice. The circuit court then ordered a period of jurisdictional discovery, after which time Nissan Japan would be free to renew its motion to dismiss for lack of personal jurisdiction.13
¶ 8 After more than two years of discovery, the circuit court held a jurisdictional hearing. At that hearing, Rasmussen argued that general personal jurisdiction was proper under Wis. Stat. § 801.05(1)(d) for two reasons. First, Rasmussen argued that under the definition of “manufacturer” in Wisconsin's Lemon Law, Wis. Stat. § 218.0171, Nissan North America is the agent of Nissan Japan, and therefore it is proper to impute the activities of Nissan North America to Nissan Japan.14 Second, Rasmussen argued that under the alter-ego theory of jurisdiction, Nissan Japan had sufficient control over Nissan North America to warrant exercise of general personal jurisdiction over Nissan Japan.15
¶ 9 Nissan Japan contended that Rasmussen's Lemon Law-agency argument had no merit because Nissan Japan is not a warrantor and Nissan Japan has never been brought into any Lemon Law case “under any theory let alone a theory of agency.” 16 Moreover, with regard to the alter-ego theory of jurisdiction, Nissan Japan argued that the day-to-day functioning of Nissan North America is reserved to Nissan North America, and there is no basis to conclude that the relationship between Nissan Japan and Nissan North America contravenes corporate formalities.
¶ 10 At the conclusion of the hearing, the circuit court made findings of fact on the jurisdictional issues that relate to the conspiracy to price fix that Rasmussen alleged. The findings relevant to this review are:
•
•
• “[T]here has not been a showing that there was not independent decision-making by the subsidiary.”
• “There appears to have been observance of formal corporate legal requirements, at least no showing to the contrary.” 17
¶ 11 Based on these findings of fact, the circuit court concluded that “there has clearly been a failure to demonstrate the corporate veil ought to be pierced[,] or that on any other theory, jurisdiction over Nissan Japan could be obtained because the subsidiary was simply a tool or an extension of the parent.” Accordingly, the court dismissed Nissan Japan from the suit based on a lack of personal jurisdiction.
¶ 12 Rasmussen appealed and the court of appeals affirmed the dismissal. Rasmussen v. Gen. Motors Corp., No. 2007AP35, unpublished slip op., 2010 WL 1994047 . The court of appeals, relying on Insolia v. Philip Morris Inc., 31 F.Supp.2d 660 (W.D.Wis.1998), held that “the only provision of [Wisconsin's] personal jurisdiction statute authorizing personal jurisdiction over a parent corporation based on an agency relationship with its subsidiary is Wis. Stat. § 801.05(4)(a), which allows for specific personal jurisdiction.” Rasmussen, No. 2007AP35, unpublished slip op., ¶ 23. Therefore, an agency theory provides no basis on which to ground general personal jurisdiction pursuant to § 801.05(1)(d), based on the acts of the nonresident...
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