Webber v. Armslist LLC
| Decision Date | 09 November 2021 |
| Docket Number | Case No. 20-C-1526 |
| Citation | 572 F.Supp.3d 603 |
| Parties | Richard WEBBER, as Special Administrator of the Estate of Sara J. Schmidt, Plaintiff, v. ARMSLIST LLC and Jonathan Gibbon, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
John D. Kimball, Blank Rome LLP, New York, NY, Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Washington, DC, Patrick O. Dunphy, Brett A. Eckstein, Cannon & Dunphy SC, Brookfield, WI, for Plaintiff.
Timothy L. Moore, Law Offices of Timothy L. Moore, San Francisco, CA, for Defendants.
DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO TRANSFER AND GRANTING IN PART DEFENDANTS’ MOTIONS TO DISMISS
Plaintiff Richard Webber, as special administrator for the estate of his daughter, Sara Schmidt, filed this diversity action against Defendants Armslist LLC and Jonathan Gibbon. The complaint asserts six state law claims against both Defendants—common law negligence, negligence per se, public nuisance, civil conspiracy, wrongful death, a survival action—as well as a claim to pierce the corporate veil against Gibbon. The Court has jurisdiction under 28 U.S.C. § 1332. The case is before the Court on Defendants’ motions to dismiss for lack of jurisdiction and failure to state a claim (Dkt. Nos. 5 & 6) and Plaintiff's motion to transfer this case to the Western District of Pennsylvania (Dkt. No. 10). For the following reasons, Defendants’ motion to dismiss for lack of personal jurisdiction and Plaintiff's motion to transfer venue are denied. Defendants’ motions to dismiss for failure to state a claim, however, will be granted.
Armslist is an online marketplace for guns. Generally, only licensed firearm dealers, known as Federal Firearms Licensees (FFLs), may sell firearms but only on the condition that various safeguards be taken, such as the completion of a background check on the purchaser and completion of a record of sale. Compl. at ¶¶ 6–7, Dkt. No. 1. However, "occasional" gun sales by private, non-FFL sellers may be transacted without those federal requirements. Id. at ¶ 9. Armslist allegedly facilitates these occasional sales between private parties and those who would otherwise be disqualified from owning a firearm under federal or state law. Id. at ¶ 13. Plaintiff alleges that Armslist "chose to design and build Armslist.com to allow, enable and assist illegal gun buyers and sellers to buy and sell guns" without investigation into whether purchasers were eligible to purchase a firearm. Id. at ¶ 19.
As a result of Armslist's design decisions and business practices, Plaintiff alleges, Schmidt's estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Compl. at ¶¶ 141, 147–48. Shortly thereafter, Schmidt's estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother's house to drop off her three children. Id. at ¶ 152. Schmidt's estranged husband then committed suicide in the backyard of the house. Id. at ¶ 153. Plaintiff alleges that, but for Armslist's failure to enact adequate safeguards, and but for Armslist's conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt's estranged husband would not have been able to purchase the firearm that he used to kill her. Id. at ¶¶ 155–56.
Plaintiff has moved to transfer the case to the Western District of Pennsylvania, arguing that it is a "more convenient venue for this case to proceed." Dkt. No. 11 at 5. Under 28 U.S.C. § 1404(a), a district court may, "in the interest of justice," transfer an action to another district court "where it might have been brought." When a § 1404(a) motion is filed, a district court "must evaluate both the convenience of the parties and various public interest considerations." Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas , 571 U.S. 49, 62, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013).
Factors relating to the parties’ private interests include "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive."
Id. at 62, n.6, 134 S.Ct. 568 (quoting Piper Aircraft Co. v. Reyno , 454 U.S. 235, 241 n.6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ). In evaluating whether a transfer would be in the interest of justice, "courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court's relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy." Research Automation , Inc. v. Schrader-Bridgeport Int'l, Inc. , 626 F.3d 973, 978 (7th Cir. 2010) (internal citations omitted). Here, the factors weigh against transferring this case to the Western District of Pennsylvania.
Beginning with the private interest factors, Plaintiff primarily argues it would be more convenient to litigate the case in Pennsylvania because Defendants, potential witnesses, and a significant amount of proof are all located in Pennsylvania. Defendants counter that there are also witnesses in Wisconsin, that Wisconsin-specific discovery may be necessary, and that a significant amount of proof in this case is likely to be electronic, rendering proximity to the proof relatively insignificant. The Court finds that the private interest factors are a wash. Witnesses are located in both districts and the fact that much of the discovery in this case will likely involve electronic information suggests that neither district is in a better position to hear this case. While the Court is sensitive to the proposition that there is a "strong presumption in favor of the plaintiff's choice of forum," Piper , 454 U.S. at 255, 102 S.Ct. 252, Plaintiff originally chose to litigate in this forum and waited over three months to file his motion to transfer, after Defendants had filed their motions to dismiss. In this same vein, the Court sees no reason to transfer this case to the Western District of Pennsylvania, where it is nearly certain that Defendants will renew their motions to dismiss, thus forcing Plaintiff and Defendants to relitigate the same issue that is pending before this Court.
As to the public factors, the Court finds that these factors weigh against transfer. First, although Plaintiff asserts that the Western District of Pennsylvania disposes of civil matters roughly a month and a half sooner than this district, the Court does not find this to be a sufficient reason for transfer. Second, Plaintiff has asserted claims that arise under Wisconsin law, the state in which this Court sits. This Court's greater familiarity with Wisconsin law weighs heavily against transfer to the Western District of Pennsylvania, where the court will likely have little experience with Wisconsin law. The final two factors, the respective desirability of resolving controversies in each locale and the relationship of each community to the controversy, also weigh against transfer. There is no doubt that there is a strong relationship between the controversy and the community in this case, and there is also no doubt that there is a strong desire to resolve the controversy in Wisconsin, where the tragic death of Schmidt occurred. For these reasons, Plaintiff's motion to transfer this case to the Western District of Pennsylvania is denied.
Defendants have moved this Court to dismiss the complaint pursuant to Federal Rule of Procedure 12(b)(2) for lack of personal jurisdiction. In a diversity case, such as this one, a federal district court has personal jurisdiction "only if a court of the state in which it sits would have such jurisdiction." Klump v. Duffus , 71 F.3d 1368, 1371 (7th Cir. 1995). Personal jurisdiction in Wisconsin involves a two-step analysis under its long-arm statute. Wis. Stat. § 801.05.; Salfinger v. Fairfax Media Ltd. , 2016 WI App 17, ¶ 13, 367 Wis. 2d 311, 876 N.W.2d 160. "The long-arm statute is to be construed liberally and in favor of jurisdiction, and the party asserting jurisdiction carries a ‘minimal burden of establishing a prima facie threshold showing that constitutional and statutory requirements for the assumption of personal jurisdiction are satisfied.’ " Salfinger , 367 Wis. 2d 311, ¶ 13, 876 N.W.2d 160 (citing Kopke v. A. Hartrodt S.R.L. , 2001 WI 99, ¶ 8, 245 Wis. 2d 396, 629 N.W.2d 662 ) (internal citations omitted). The first step is to determine whether Defendants are subject to jurisdiction under the statute.
Id. If the requirements under Wis. Stat. § 801.05 are satisfied, then courts must consider whether exercising jurisdiction comports with the requirements of due process. Id. at ¶ 14, 876 N.W.2d 160. "The due process clause will not permit jurisdiction to be based on contacts with the forum that are random, fortuitous, or attenuated." uBID, Inc. v. GoDaddy Grp., Inc. , 623 F.3d 421, 426 (7th Cir. 2010). Whether personal jurisdiction is warranted depends on "whether the relationship between the plaintiff's claim and the defendant's contacts with the state made it fair to call the defendant into court there." Id. at 427.
The Court has personal jurisdiction over both Armslist and Gibbon. Wisconsin's long-arm statute confers jurisdiction where there was injury to a person within Wisconsin arising out of "an act or omission outside [Wisconsin] by the defendant, provided in addition that at the time of the injury ... [s]olicitation or service activities were carried on within [Wisconsin] by or on...
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