AFI Holdings of Illinois, LLC v. National Broadcasting Company et al

Filing 34

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 3/9/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

AFI HOLDINGS OF ILLINOIS,
INC., d/b/a HAPPY LEAVES,
INC.,
Plaintiff,

Case No. 16 C 8652

v.

Judge Harry D. Leinenweber

NATIONAL BROADCASTING
COMPANY, and WATERMAN
BROADCASTING,
Defendants.

MEMORANDUM OPINION AND ORDER
Defendant

Waterman

Broadcasting’s

(“Waterman”)

Motion

to

Dismiss the Complaint pursuant to Rule 12(b)(2) [ECF No. 19] is
granted.

The case against Waterman is dismissed for lack of

personal jurisdiction.
is

directed

to

serve

Plaintiff Happy Leaves (“Happy Leaves”)
the

remaining

Defendant,

National

Broadcasting Company (“NBC”), immediately if it has not done so
and if a viable case remains against NBC given the dismissal of
Waterman.

See, FED. R. CIV. P. 4(m).
I.

BACKGROUND

This case is before the Court on diversity jurisdiction.
Happy Leaves, an Illinois company, brings a defamation lawsuit
against

Waterman

Broadcasting,

a

Florida

corporation.

ECF

No. 16 (Am. Compl.) ¶¶ 2, 4.

(The Court refers to Plaintiff as

Happy Leaves, its doing-business-as name, because this is the
name Plaintiff uses in its submissions to the Court.)

Happy

Leaves names NBC, a Delaware corporation headquartered in New
York, as a second Defendant in the case, but it is unclear
whether Happy Leaves has served NBC in the five months since the
suit was instituted.

Id. ¶ 2.

In any event, NBC has not filed

an appearance, and this Motion strictly concerns Waterman, not
NBC.
Happy Leaves alleges that on July 1, 2016, Waterman aired
on

its

television

Charlotte’s Web.

station

a

segment

Am. Compl. ¶ 19.

about

a

product

called

Charlotte’s Web is a hemp

oil extract manufactured by CW Hemp, Inc., a company located in
Colorado that is not a party to this lawsuit.
Hemp

uses

extract.

Happy

Leaves

Id. ¶ 16.

as

a

distributor

Id. ¶¶ 7-8.

for

its

hemp

CW
oil

Happy Leaves alleges that before Waterman

aired its broadcast, Happy Leaves was the only distributor of
Charlotte’s Web that sold the product via the website Groupon.
Id.

As it so happens, Groupon is headquartered in Illinois.

Id.
Waterman’s

allegedly

defamatory

news

Charlotte’s Web “pot” and “medical marijuana.”

segment

called

Am. Compl. ¶ 21.

It mentioned that the product can be purchased on Groupon, and
- 2 -

“on numerous occasions, the newscast cuts to a screenshot of
Groupon’s

Happy

Leaves

web

page,

which

shows

a

picture

of

Charlotte’s Web with text saying, ‘Charlotte’s Web CBD Oil from
Happy Leaves.’”

Id. ¶¶ 21-22.

The segment was investigated and reported on by a reporter
by the name of Graham Hunter (“Hunter”).

Before Waterman aired

the piece, Hunter had sent an email to Happy Leaves and “reached
out” to Groupon.

Am. Compl. ¶¶ 25-26.

Leaves consisted of two sentences:

The email to Happy

“What is in your product?”

and “How is this legal to dispense in the U.S.?”

Id. ¶ 27.

There is no allegation as to how Hunter “reached out” to Groupon
or what he communicated to the company, although the affidavit
submitted

by

Happy

Leaves’

contacted Groupon just once.

owner

suggests

that

Waterman

ECF No. 27-1 (Fligg’s Decl.) ¶ 4

(attesting that Hunter contacted both Happy Leaves and Groupon
on the date of the broadcast).
In his affidavit, Hunter states that he did not connect
with anyone at either Happy Leaves or Groupon before the segment
aired.

ECF No. 19-2 (Hunter’s Decl.) ¶¶ 4, 6.

He also attests

that he did not know that either company is located in Illinois.
Id. ¶¶ 3, 6.
sources,”

Hunter declares that he “did not rely on Illinois

something

Fligg’s Decl. ¶ 3.

that

Happy

Leaves

disputes.

Id.

¶ 5;

Finally, Hunter declares that he did not
- 3 -

“have any reason to believe the impact of the report would be
felt in Illinois.”

Hunter’s Decl. ¶ 5.

This last statement

presumably is because Waterman’s broadcast is restricted to the
area of Fort Myers/Naples, Florida and 100% of its viewership is
in this area.
surprisingly
Illinois.

ECF No. 19-2 (Pontius’s Decl.) ¶¶ 3, 5.

then,

Waterman

has

no

offices

or

Not

employees

in

Id. ¶ 6.

Nonetheless, Waterman has a website, and on this website,
it posted the news segment.

Happy Leaves alleges that “as a

direct result of NBC-2 reporter Graham Hunter ‘reaching out’ to
Groupon about the story in Illinois, Groupon’s management and
legal department in Chicago saw the segment.”

Am. Compl. ¶ 30.

Groupon thereafter “discontinued all sales of Charlotte’s Web on
its website” and “Happy Leaves’ sales of Charlotte’s Web sales
were devastated.”

Id. ¶¶ 31, 36.

Although Waterman retracted

the story from its website just two weeks after the original air
date, Happy Leaves claims that harm, calculated to be “in an
amount in excess of $1,000,000.00,” has been done.

Id. ¶¶ 35,

42, 49, 57.
Happy

Leaves

now

sues

Waterman

and

NBC

in

the

Northern

District of Illinois, alleging violations of Illinois law.
is

in

this

affiliates.

lawsuit

because

Waterman

is

one

of

its

NBC
local

Waterman, speaking for itself, asks the Court to
- 4 -

dismiss the case against it for lack of personal jurisdiction.
The

Court

grants

this

request

and

so

does

not

address

the

alternative prayer to transfer the case to the Middle District
of Florida.
II.
As

the

Plaintiff,

LEGAL STANDARD
Happy

Leaves

bears

the

establishing a prima facie case for jurisdiction.

burden

of

Citadel Grp.,

Ltd. v. Wash. Reg’l Med. Ctr., 536 F.3d 757, 760 (7th Cir.
2008).

Since

Waterman

has

submitted

affidavits

in

its

Rule 12(b)(2) motion to dismiss, Happy Leaves must “go beyond
the

pleadings

and

submit

affirmative

exercise of jurisdiction.”

evidence

supporting

the

Purdue Research Found. v. Sanofi-

Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003).
The

Court

considers

the

pleadings

affirmative evidence in making its ruling.
raise

a

Leaves’

factual
favor.

dispute,

Id.

the

However,

Court
it

and

parties’

Where these papers

resolves

accepts

the

as

them
true

in

Happy

“any

facts

contained in the defendant’s affidavits that remain unrefuted by
the plaintiff.”

GCIU-Emp’r Ret. Fund v. Goldfarb Corp., 565

F.3d 1018, 1020 n.1 (7th Cir. 2009).
Although
statement

not

Waterman

urges

based

an

on

the

Court

affiant’s

to

personal

Court finds doing so unnecessary in this case.
- 5 -

disregard

any

knowledge,

the

See, Contrak,

Inc. v. Paramount Enters. Int’l Inc., 201 F.Supp.2d 846, 851-52
(N.D. Ill. 2002) (“Several courts have suggested that affidavits
submitted in response to a motion to dismiss under Rule 12(b)(2)
must be based on personal knowledge or comply with Rule 56(e),
. . . but the Seventh Circuit has not addressed this issue.”).
The disposition of Waterman’s Motion does not hinge on whether
the

Court

strikes

some

of

the

statements

from

Happy

Leaves’

affidavit.
The

Court

may

deny

the

Motion

and

exercise

personal

jurisdiction over Waterman only if an Illinois state court can
do so.

Citadel, 536 F.3d at 760.

Under the Illinois long-arm

statute, a state court may exercise jurisdiction on any basis
allowed

by

the

Illinois

ILCS 5/2-209(c).

and

federal

constitution.

See,

735

The Court proceeds under the federal analysis

because the parties have agreed that the requirements of due
process

under

the

U.S.

Constitution

control

their

case

and

because “no case has yet emerged where due process was satisfied
under

the

federal

constitution”.

constitution

but

not

under

the

Illinois

Citadel, 536 F.3d at 761.

Finally, federal due process requires that, in order to
subject a non-resident like Waterman to personal jurisdiction in
Illinois,

Waterman

must

“have

certain

minimum

contacts

with

[Illinois] such that the maintenance of the suit does not offend
- 6 -

‘traditional

notions

of

fair

play

and

substantial

justice.’”

Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945).
III. ANALYSIS
Before it can engage with the substance of the Motion, the
Court must dispose of Happy Leaves’ Complaint that Waterman’s
Motion is too long.

Happy Leaves claims that due to the use of

“excessive” single spacing and other horrors, Defendant’s 15page brief actually is 17 pages and so does not conform to a
local rule.

On this ground, Happy Leaves asks the Court to

strike the Motion.

The Court sees nothing out of the ordinary

in the formatting of Waterman’s brief and finds no reason to
strike any part of it.
In any case, Waterman needed no more than the first ten
pages

of

personal

its

brief

jurisdiction

to

argue

over

that

it.

the

Happy

Court
Leaves

does

not

disagrees

have
and

asserts two independent bases for haling Waterman into court:
(1) Waterman is an affiliate of NBC, and (2) Waterman’s tort is
aimed at Illinois and caused harm to Happy Leaves in that state.
A.
Happy

Jurisdiction Based on Affiliation with NBC
Leaves

contends

that

Waterman’s

Motion

to

Dismiss

should be denied because “general jurisdiction is appropriate
against Co-Defendant NBC.”

ECF No. 27 at 5-6.

As a procedural

matter, the Court is unprepared to find that it has general
- 7 -

jurisdiction over NBC when NBC has not had an opportunity to be
heard on the issue.

Waterman is the only Defendant that has

filed an appearance in the case, and the Court will decide its
Motion strictly on the basis of facts and arguments concerning
Waterman.
In addition, Happy Leaves has made no argument as to why
the Court has personal jurisdiction over Waterman if, arguendo,
it has general jurisdiction over NBC.

Happy Leaves, in its

Complaint, alleges that Waterman is an affiliate of NBC, but
beyond

this

has

cited

no

authority

for

the

proposition

that

general jurisdiction over one entity gives a court jurisdiction
over

that

waived.

entity’s

affiliates.

The

argument

is

therefore

See, United States v. Alden, 527 F.3d 653, 664 (7th

Cir. 2008); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991); Cannon v. Burge, No. 05 C 2192, 2006 U.S. Dist.
LEXIS 4040, at *28 n.8, *33, *36, *66, *76-77 (N.D. Ill. Feb. 2,
2006).
1. Even if Not Waived, Happy Leaves’
Argument Fails as a Matter of Law.
Even if it were not waived, the Court can find no support
for

Happy

Controlling
jurisdiction

Leaves’
case

law

inquiries,

jurisdiction-by-affiliation
has

long

“[e]ach

made

clear

defendant’s

- 8 -

that

argument.
in

contacts

personal
with

the

forum State must be assessed individually.”

Calder v. Jones,

465 U.S. 783, 790 (1984); Purdue Research, 338 F.3d at 784;
Central States, Se. & Sw. Areas Pension Fund v. Reimer Express
World Corp., 230 F.3d 934, 944 (7th Cir. 2000).
Court

reiterated

the

principle

recently,

The Supreme

writing

that

for

purposes of establishing jurisdiction over a defendant, courts
must focus on the “contacts that the ‘defendant himself’ creates
with the forum State.”

Walden v. Fiore, 134 S. Ct. 1115, 1122

(2014) (emphasis in original).

Here, instead of focusing on

Waterman, “the defendant himself,” Happy Leaves is attempting to
parlay contacts between a third party (NBC) and Illinois into
power to hale Waterman into court.

But attempts to satisfy

jurisdictional demands “by demonstrating contacts between . . .
third parties[] and the forum State” violate Due Process and
must be rejected. Id.
Waterman’s affiliation with NBC does not save Happy Leaves’
attempt

to

bootstrap

Seventh

Circuit

subsidiary-parent
due

process

jurisdiction.

examined

the

relationship

requires

that

In

issue
and

in

held

personal

Central
the
that,

States,

context

of

the
a

“constitutional

jurisdiction

cannot

be

premised on corporate affiliation or stock ownership alone where
corporate formalities are substantially observed and the parent
does not exercise an unusually high degree of control over the
- 9 -

subsidiary.”

Central States, 230 F.3d at 943; see also, Camasta

v. Omaha Steaks Int’l, Inc., No. 12-cv-08285, 2013 U.S. Dist.
LEXIS 118475, at *4 (N.D. Ill. Aug. 21, 2013) (applying Central
States to a case where the defendants were not subsidiary-parent
but corporate affiliates through a common ownership).
Here, Happy Leaves has made no allegation other than that
Waterman is a local affiliate of NBC.

It has not alleged that

corporate formalities between Waterman and NBC were not observed
or that Waterman exercised control over NBC (or vice versa).
The Court cannot find that it has jurisdiction over Waterman
merely because Waterman is NBC’s affiliate.
It is true that Happy Leaves here argues that Illinois has
general jurisdiction over NBC whereas the cases cited so far
deal with situations where the forum state had specific and not
general jurisdiction over a defendant.

(This is due to the fact

that the case law is much richer in authorities dealing with
specific
the

jurisdiction

centerpiece

of

since

modern

“specific

jurisdiction

jurisdiction

jurisdiction has played a reduced role.”

theory,

has

while

become
general

Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 925 (2011) (quoting
Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev.
610, 628 (1988)) (internal quotation marks omitted)).
while

two

types

of

personal

jurisdiction

- 10 -

are

However,

doctrinally

distinct,

see,

e.g.,

Goodyear,

564

U.S.

at

924

(2011)

(discussing the two types of jurisdiction); Kipp v. SKI Enter.
Corp. of Wis., 783 F.3d 695, 697-98 (7th Cir. 2015) (same),
there is nothing from Central States that suggests a different
analysis would apply when a forum state has general jurisdiction
over a parent or corporate affiliate.
The

court

rationales.

in

Central

“First,”

States

said

based

the

its

court,

holding
“where

on

two

corporate

formalities are substantially observed and the parent does not
dominate

the

subsidiary,

a

parent

and

a

subsidiary

are

two

separate entities and the acts of one cannot be attributed to
the other.”
corporate

Central States, 230 F.3d at 944.

formalities

have

been

observed,

a

Second, “[w]here
company’s

owners

reasonably expect that they cannot be held liable for the faults
of the company,” and this expectation should not be upset. Id.
Neither

of

these

rationales

depends

on

whether

general

or

specific jurisdiction is at play.
At bottom, Central States rests its holding on the “minimum
contacts” test set out in the Supreme Court’s International Shoe
opinion.

Id.

at

942-43

(characterizing

its

holding

as

“join[ing] other courts in finding that stock ownership in or
affiliation

with

sufficient

minimum

a

corporation,

contact”).

without

This

- 11 -

test

more,

is

not

a

applies

to

all

in

personam

jurisdiction

inquiries,

regardless

of

relate to general or specific jurisdiction.

whether

they

See, e.g., uBID,

Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010)
(“Personal jurisdiction can be either general or specific. . . .
In either case, the ultimate constitutional standard is whether
the

defendant

forum. . . .”)
omitted).

had

certain

(internal

Thus,

by

minimum

quotation

grounding

its

contacts
and

with

alteration

analysis

in

the

the
marks

“minimum

contacts” framework, Central States ensures the relevancy of its
holding

in

both

categories

of

personal

jurisdiction.

Happy

Leaves’ argument is irreconcilable with Central States and so
contrary to law.
2. Happy Leaves’ Argument Also Must Be
Rejected Because of its Unwanted Broader Implications.
It

is

important

to

step

back

and

understand

ramifications of what Happy Leaves is trying to do.

the

In pressing

this argument, Happy Leaves asks the Court to find that it has
jurisdiction over Waterman entirely on the basis of contacts
that NBC allegedly has with the forum state.

If the Court

accepts this argument, then Waterman can be haled into Illinois.
But Waterman is not special.

All of NBC’s affiliates, too, can

be dragged to Illinois since jurisdiction depends on NBC, not
anything

particular

to

the

affiliates.

- 12 -

Then,

because

the

affiliation between Waterman and NBC is largely unspecified, all
of

NBC’s

personnel,

suppliers,

contractors

–

indeed,

any

entities with which NBC has a relationship – may be called to
Illinois.
Illinois is not special either.

The only alleged contacts

that NBC has with Illinois are that “NBC maintains permanent
offices in Chicago and broadcasts in Chicago twenty-four hours a
day,

seven

year.”

days

per

week,

three-hundred-sixty-five

ECF No. 27 at 5; Fligg’s Decl. ¶ 6.

days

per

Having an NBC

office and receiving its broadcasts are hardly features unique
to Chicago, Illinois.

Many states have at least one city big

enough such that NBC likely maintains an office and broadcasts
in it.

Accepting Happy Leaves’ argument means that all of NBC’s

affiliates may be dragged to any of these states.
And NBC is not special.

NBC is a large company, but it is

far from being unusual for its size.

Many other firms have

offices in multiple states and maintain some kind of continuous
presence akin to 24/7 broadcasts.

Under Happy Leaves’ theory,

all those who associate with these firms can be dragged into
court in any state where the firms do business.

Such global

jurisdiction would eviscerate any link personal jurisdiction has
to territorial limits, and without such limits, it is unclear
that

personal

jurisdiction

has

any

- 13 -

meaning

left.

Should

it

succeed

here,

Happy

Leaves

may

never

need

to

make

another

personal jurisdiction argument.
For these reasons, the Court rejects Happy Leaves’ attempt
to craft jurisdiction from NBC to Waterman.
B.

Jurisdiction Based on Waterman’s Own Conduct

More circumspectly, Happy Leaves argues that the Court has
specific

jurisdiction

Illinois.

The

underlying

claim

due

parties
against

to
agree

Waterman’s
that,

Waterman

own

because

is

contacts
Happy

defamation,

with

Leaves’

Calder

v.

Jones, controls the analysis in this case.
In

Calder,

defamation

an

actress

lawsuit

against

residing
a

in

Florida

California

brought

publication

and

a

its

reporters for an allegedly defamatory article they wrote and
published.

Calder v. Jones, 465 U.S. at 784-86.

The Court held

that jurisdiction over the defendants in California was proper
because “California is the focal point both of the story and of
the harm suffered.”

Id. at 789.

The Seventh Circuit has taken

to calling the standard from Calder the “express aiming” test
because Calder “made clear that a defendant’s intentional tort
creates the requisite minimum contacts with a state only when
the defendant expressly aims its actions at the state with the
knowledge that they would cause harm to the plaintiff there.”
Mobile

Anesthesiologists

Chi.,

LLC

- 14 -

v.

Anesthesia

Assocs.

of

Hous. Metroplex, P.A., 623 F.3d 440, 444 n.1, 445 (7th Cir.
2010).
To show that Waterman’s conduct in this case satisfies the
“express

aiming”

allegations:

test,

Happy

Leaves

relies

on

the

following

(1) Waterman “reached out” to Groupon in Illinois;

(2) Waterman used Illinois sources; (3) Waterman’s segment was
available

on

its

website

and

viewable

in

Illinois;

and

(4)

Waterman caused foreseeable harm to Happy Leaves in Illinois.
The

Court

examines

each

of

these

contacts

to

see

if,

individually or collectively, they allow the Court to exercise
jurisdiction over the Defendant.
1. Waterman’s Contact with Groupon is Too Attenuated
to Constitute “Express Aiming” at Illinois.
Happy

Leaves’

strongest

evidence

that

Waterman

targeted

Illinois is that Hunter, Waterman’s reporter, “reached out to
Groupon in Illinois.”

The Court notes that Groupon being in the

same state as Happy Leaves is a fortuitous happenstance.

There

is no suggestion that Happy Leaves made use of Groupon because
of its physical proximity.

Groupon serves the nation at large,

and Happy Leaves presumably sold hemp oil extract on Groupon to
take

advantage

character.

of

its

far-flung

reach

rather

than

any

local

Put differently, had Groupon been headquartered in,

say, California, Happy Leaves likely would have used it still

- 15 -

and

Hunter

still

would

have

contacted

the

company,

but

that

contact would not have been “expressly aimed” at the forum state
(Illinois).
In any event, neither party says what Hunter communicated
to Groupon.
defamed

it

Happy Leaves does not allege that Hunter directly
in

his

communication

with

Groupon.

Rather,

it

asserts that “Hunter’s communication from Florida to Illinois []
caused

Groupon

to

view

Waterman’s

story

discontinue sales of Charlotte’s web.”

on

Happy

Leaves

and

Fligg’s Decl. ¶ 5.

The parties are likewise mum about how Hunter “reached out”
to Groupon.

Happy Leaves itself suggests that Hunter contacted

Groupon just once.

Fligg’s Decl. ¶ 4.

If Hunter’s contact with

Groupon was like his contact with Happy Leaves, then he may have
sent

a

single

email

asking

two

questions,

“What

is

in

this

product?” and “How is this legal to dispense in the U.S.?”.
Neither party disputes that Hunter did not actually speak to or
receive a real-time reply from anybody at Groupon in his effort
to “reach out.”
Waterman and Happy Leaves do engage on one point:
knowledge of Happy Leaves and Groupon’s location.

Hunter’s

Hunter states

that he did not know that the companies are located in Illinois.
Happy Leaves protests that this denial is “perfunctory.”

Yet

Happy Leaves has presented no evidence from which the Court can
- 16 -

draw

an

inference

untruthful.

that

the

denial,

however

perfunctory,

Hunter declares under penalty of perjury that he

had no knowledge of Happy Leaves or Groupon’s location.
about

what

is

Happy

investigating

Leaves

alleges

Charlotte’s

Web,

that

Hunter

emailing

did

Happy

–

Nothing
including

Leaves,

and

“reaching out” to Groupon – suggests that he likely knew that
Happy Leaves and Groupon are headquartered in Illinois.

The

Court does not need a longer than perfunctory “I did not know”
as

much

as

it

needs

a

basis

to

doubt

the

veracity

of

that

statement.
These

facts

militate

against

“expressly targeted” Illinois.
(7th

Cir.

2010),

another

that

Waterman

Tamburo v. Dworkin, 601 F.3d 693

case

particularly instructive here.

finding

dealing

with

defamation,

is

The Seventh Circuit in that case

found that one set of defendants specifically directed their
tortious conduct at the forum state but the other did not.
Tamburo, 601 F.3d at 697-98.

See,

Tamburo thus neatly delineates

where the line may be drawn.
In holding that Illinois may exercise jurisdiction over the
first set of defendants, the Seventh Circuit found the following
facts relevant.
they

supplied

One, the defendants wrote messages in which
“Tamburo’s

Illinois

readers] to contact and harass him.”
- 17 -

address”

and

“urged

[the

Tamburo, 601 F.3d at 706.

Two,

a

defendant

“personally

accusing

him

of

‘theft’

‘stolen’

data

from

The

and

contacted
demanding

Breeder’s

Tamburo
that

Standard.”

he

by

email,

remove
Three,

Id.

the
the

court found that the defendants “engaged in this conduct with
the knowledge that Tamburo lived in Illinois and operated his
business there; their affidavits do not deny this.” Id.
In contrast, the court found that Illinois did not have
jurisdiction
DeJong,

over

“allegedly

individual

the

remaining

facilitated

defendants’

defendant.
the

tortious

posting

messages”

This
of

defendant,
of

the

reposting

by

some

the

messages, but “[t]he complaint does not say how many, nor does
it describe the content of the messages that were reposted [by
DeJong].”

Tamburo, 601 F.3d at 708.

Moreover, “unlike the

individual defendants, there are no allegations that DeJong or
anyone

else

associated

with

[his

company]

acted

with

the

knowledge that Tamburo operated his business in Illinois or with
the specific purpose of inflicting injury there.” Id.
Between these two sets of facts, there is no doubt that
Waterman cleaves more closely to those supporting a finding that
it did not target Illinois.

Happy Leaves alleges that Hunter

“reached

the

out”

to

Groupon

in

state

and

so,

like

DeJong,

facilitated the spread of the allegedly defamatory broadcast.
Yet, like the complaint that failed against DeJong, Happy Leaves
- 18 -

“does not say how many” messages Hunter had with Groupon, “nor
does

it

describe

the

conveyed to Groupon.

content

of

the

messages”

that

Hunter

Moreover, Hunter explicitly denies in his

affidavit that he knew that Happy Leaves is located in Illinois,
thus

differentiating

his

case

from

that

of

defendants who could be haled into Illinois.

the

Tamburo

Finally, unlike

the tortious messages in Tamburo, the broadcast here, far from
supplying Happy Leaves’ address, references Happy Leaves only to
the extent of showing screen captures from its Groupon page.
On these facts, the Court finds that Hunter’s “reaching
out”

to

Groupon

is

insufficient

to

show

that

Waterman

has

purposefully targeted Illinois.
2.
Happy
another

Waterman Did Not Use Illinois Sources

Leaves

way:

by

argues
using

that

Waterman

Illinois

targeted

sources

in

its

Illinois
news

in

piece.

This, argues Happy Leaves, makes Waterman’s conduct like that of
a defendant in Calder, who relied “on phone calls to sources in
California

for

the

information

contained

in

the

article.”

Calder, 465 U.S. at 785-86.
As

evidence

that

Waterman

used

Illinois

sources,

Happy

Leaves points to the fact that Waterman’s news segment contains
“screen captures of [Happy Leaves’] Groupon website.”
Decl. ¶ 3.

Fligg’s

According to Happy Leaves, the website constitutes
- 19 -

an

Illinois

source

because

“[t]he

web

page

is

maintained

in

Illinois and the photographs from the website that are used in
the

story

are

copyrighted

in

Illinois.”

Id.

The

Court

is

unpersuaded that a web page can be considered of Illinois origin
on the bases asserted.
First,
website.
residing

Hunter

accessed

Groupon’s,

not

Happy

Leaves’,

The screen captures Hunter took are of information
on

Groupon’s

servers.

Insofar

as

this

constitutes

using a source with a specific location, Hunter used the source
drawn from wherever Groupon’s servers are located.

Happy Leaves

does not allege that the servers are in Illinois, much less that
Hunter

knew

that

the

targeted the state.

servers

were

there

and

so

purposefully

See, NTE LLC v. Kenny Constr. Co., No. 14 C

9558, 2015 U.S. Dist. LEXIS 142686, at *9 (N.D. Ill. Oct. 21,
2015) (“Nor does accessing a URL with ‘NTE’ [the plaintiff’s
name] in the text establish that Defendant aimed its actions at
Illinois.

The URL itself does not indicate where NTE is located

and,

drawing

even

Plaintiff,

it

is

all

reasonable

inferences

in

not

reasonable

to

that

expect

favor

of

the

anyone

who

accesses that URL will then research where NTE is located.”).
Second, if Hunter did not know that Happy Leaves is located
in Illinois, he cannot have known that the people who maintain
Groupon’s

Happy

Leaves

web

page
- 20 -

are

in

Illinois.

This

is

significant because a defendant’s awareness of his contact with
a forum state is an important consideration in the analysis of
personal jurisdiction.
Rudzewicz,

471

U.S.

For instance, in Burger King Corp. v.

462,

480-81

(1985),

the

Court

took

into

account the fact that the defendant “most certainly knew that he
was affiliating himself with an enterprise based primarily in
Florida”

in

ruling

that

jurisdiction over him.

Florida

may

exercise

in

personam

In Illinois v. Hemi Grp. LLC, 622 F.3d

754, 757-58 (7th Cir. 2010), the court found “Hemi’s argument
that it did not purposefully avail itself of doing business in
Illinois
fact,

[to]

ring[]

knowingly

did

particularly

hollow”

do

with

business

because

Illinois

“Hemi,

in

residents.”

Likewise, in Felland v. Clifton, 682 F.3d 665, 675 (7th Cir.
2012), the Seventh Circuit reversed a lower court’s finding that
Wisconsin did not have jurisdiction when the defendant “Clifton
and his associates knew from the beginning that the Fellands
were Wisconsin residents.”

Here, Hunter has sworn that he did

not know he was making contact with Illinois, and Happy Leaves
has given the Court no basis to doubt that assertion.
Moreover, to assert that a website is an Illinois source
because a corporate employee who maintains that website works in
Illinois is too far of a stretch.

There may be many people who

maintain a website, and the locations from which they do their
- 21 -

work are generally unknown to a visitor to the site.

To premise

jurisdiction on such obscured locational details would violate
“traditional

notions

of

fair

play

and

substantial

justice.”

See, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)

(“The

Due

Process

Clause

.

.

.

allows

potential

defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them
liable to suit.”).
The

state

website

is

Indeed,

given

copyright

of

even

the

copyright

further

that

removed

copyright

registration

is

of

a

from

is

a

photograph
the

user’s

federal

administered

from

seen

on

a

experience.

scheme

and

Washington,

that
D.C.,

the Court is puzzled as to what Happy Leaves means when it says
that “the photographs from the website that are used in the
story are copyrighted in Illinois.”

See generally, 17 U.S.C.

§101, et seq.
In

sum,

Happy

Leaves

has

not

shown

that

Waterman

purposefully exploited Illinois by using sources drawn from the
state.
3. Waterman’s Website Is Not “Expressly
Aimed” at Illinois
Although

not

explicit

in

its

papers,

Happy

Leaves

also

seems to rely on the fact that Waterman’s website is accessible

- 22 -

in Illinois.

However, that a website is accessible in a state

does not mean that it is “expressly aimed” at that state.
For

one,

Happy

Leaves

does

not

allege

that

website is anything other than uniform nationwide.
Happy

suggest

that

the

website

experience

Waterman’s

Nowhere does

becomes

locally

focused or otherwise varies when the person accessing it is from
Illinois.

In such circumstances, courts have found that the

websites at issue were not targeted at the forum states.

See,

United Airlines, Inc. v. Zaman, 152 F.Supp.3d 1041, 1054 (N.D.
Ill. 2015), (holding that the forum state does not have personal
jurisdiction, in part, because “nothing in the record even hints
that

Skiplagged.com

is

less

accessible

or

otherwise

varies,

depending upon from where in the United States (or anywhere else
in

the

world)

a

user

accesses

the

website”);

Gullen

v.

Facebook.com, Inc., No. 15 C 7681, 2016 U.S. Dist. LEXIS 6958,
at *7 (N.D. Ill. Jan. 21, 2016) (“Because plaintiff does not
allege that Facebook targets its alleged biometric collection
activities

at

accessible

to

Illinois
Illinois

residents,
residents

the

fact

does

that

not

its

confer

site

is

specific

jurisdiction over Facebook.”); Hemi, 622 F.3d at 760 (“Courts
should

be

jurisdiction

careful

in

involving

resolving
online

questions

contacts

to

about
ensure

personal
that

a

defendant is not haled into court simply because the defendant
- 23 -

owns

or

operates

a

website

that

is

accessible

in

the

forum

state, even if that site is ‘interactive.’”); Jennings v. AC
Hydraulic

A/S,

383

F.3d

546,

549-50

(7th

Cir.

2004)

(“The

exercise of personal jurisdiction based on the maintenance of a
passive website is impermissible because the defendant is not
directing its business activities toward consumers in the forum
state in particular.”).
In

addition,

the

evidence

indicates

that

Waterman’s

website, if anything, is aimed away from Illinois.

As far as

Happy Leaves’ allegations go, Waterman had exactly one website
visitor from Illinois:

Groupon.

This is understandable given

that Waterman’s station “runs predominately local news” and that
“100% of Waterman’s NBC 2 viewership is in the Ft. Myers/Naples,
Florida area.”

Pontius’s Decl. ¶ 3.

To the extent that the

website hosts the content that was broadcasted, i.e., Florida
local news, or caters to those in the Ft. Myers/Naples area, the
site is directed towards Ft. Myers/Naples, Florida and away from
Illinois.

Waterman’s

website

thus

favors

Waterman did not aim its conduct at Illinois.

a

finding

that

See, Jackson v.

Cal. Newspapers P’ship, 406 F.Supp.2d 893, 898-99 (N.D. Ill.
2005)

(granting

jurisdiction

a

when

motion
the

to

dismiss

defendant’s

- 24 -

for

website

lack
“is

of

personal

directed

at

California residents” and “does not aim its services at [forumstate] Illinois residents”).
4.

Happy Leaves’ Injury in Illinois is Insufficient
by Itself to Support Jurisdiction in the State

While Happy Leaves may have suffered injury in Illinois, it
ignores the fact that such an injury is not sufficient in itself
to support jurisdiction.

See, Walden, 134 S.Ct. at 1125.

Happy

Leaves seemingly recognizes this principle as it purports to
address the issue of how Waterman expressly aimed its tortious
action at Illinois.

However, Happy Leaves then adopts a reading

of the case law that minimizes the importance of the Defendant’s
conduct.

In particular, it cites to Janmark Inc. v. Reidy, 132

F.3d 1200 (7th Cir. 1997), for the proposition that when “the
injury

took

place

in

Illinois,

[and]

the

tort

Illinois,” the case is “actionable in Illinois.”

occurred

in

ECF No. 27 at

8.
The Seventh Circuit has disavowed that such a lesson may be
drawn from Janmark.

In Tamburo, 601 F.3d at 705-06, the court

clarified that “despite its broad language,” Janmark must be
read to require both “a forum-state injury and ‘something more’
directed

at

that

state

before

jurisdiction

defendant may be considered proper.”
bypass

this

“something

more”

by

- 25 -

over

a

foreign

Happy Leaves attempts to
characterizing

Janmark

as

requiring only an “injury in Illinois,” or equivalently, a “tort
in Illinois.”
like

it

is

Although “a tort occurring in Illinois” sounds

at

least

something

additional

to

“an

injury

in

Illinois,” Janmark reasoned that “[a] wrong does not become a
‘tort’ until an injury has occurred . . . and the location of
the injury therefore is vital to understanding where the tort
occurred.”

Janmark, 132 F.3d at 1202.

The “injury” and “tort”

thus collapse back into one.
In short, Happy Leaves takes Janmark to bless its suit in
Illinois because Happy Leaves suffered injury in the state.

But

since Tamburo, reading Janmark to “broadly authoriz[e] personal
jurisdiction wherever a tort victim is injured” is no longer
permissible.

Tamburo, 601 F.3d at 705-06.

The Seventh Circuit recently made known its disapproval of
Janmark

in

even

more

marked

terms.

In

Advanced

Tactical

Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796,
802 (7th Cir. 2014), the court singled out Janmark and stated:
“Any decision that implies” that a plaintiff may serve as the
only link between the defendant and the forum “can no longer be
considered

authoritative.”

The

court’s

decision

was

precipitated by Walden, in which the Supreme Court explained
that, “Calder made clear that mere injury to a forum resident is
not a sufficient connection to the forum.”
- 26 -

Walden, 134 S.Ct. at

1125.

As

“the

experienced

a

proper

question

particular

is
or

injury

not

where

effect

the

but

plaintiff

whether

the

defendant’s conduct connects him to the forum in a meaningful
way,” the proper answer as to why this Court has jurisdiction
over Waterman cannot be that Happy Leaves experienced injury in
Illinois. Id.
Ultimately, Happy Leaves has not established the kind of
contacts

that

constitute

the

indispensable

“something

more.”

The Court earlier rejected that Waterman’s “reaching out” to
Groupon, its use of screen shots, or its website shows “minimum
contacts” with the forum state.

The Court now finds that the

combination of these activities does not clear the bar either.
At

bottom,

the

only

contacts

that

Waterman

made

with

Illinois were to view some web pages, send Happy Leaves a twosentence email, and attempt an unspecified form of communication
with Groupon from which it got no real-time response.

These

contacts resulted in a broadcast that mentioned Happy Leaves
only insofar as to show screen caps of its Groupon page and that
garnered no viewer in Illinois other than Groupon.
facts,

the

Court

concludes

that

Waterman’s

On these

contacts

with

Illinois are too attenuated for the exercise of power to hale it
into

court.

See,

Burger

King,

471

U.S.

at

475,

(“This

‘purposeful availment’ requirement ensures that a defendant will
- 27 -

not be haled into a jurisdiction solely as a result of ‘random,’
‘fortuitous,’ or ‘attenuated’ contacts.”).
IV.

CONCLUSION

For the reasons stated herein, Defendant Waterman’s Motion
to Dismiss [CF No. 19] is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: March 9, 2017

- 28 -