Thomas et al v. Ford Motor Company
ORDER denying 9 Motion to Dismiss; denying as moot 13 Motion for Extension of Time; denying 17 Motion to Dismiss for Lack of Jurisdiction. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEAN THOMAS and
Case No. 17-C-888
WISCONSIN PHYSICIANS SERVICE
FORD MOTOR COMPANY,
DECISION AND ORDER
Plaintiffs Dean and Margaret Thomas brought this suit advancing claims of negligence and
strict liability against defendant Ford Motor Company. The Thomases have named Wisconsin
Physicians Service Insurance Corporation (WPS) as an involuntary plaintiff in this action to resolve
any subrogation interest it might have in the proceeds. Ford has filed motions to dismiss against both
the Thomases and WPS (collectively referred to as Plaintiffs) pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, asserting that it is not subject to personal jurisdiction in Wisconsin.
Plaintiffs have moved for an extension of time to respond to the motions in order to conduct
discovery regarding personal jurisdiction. For the reasons set forth below, Ford’s motions will be
denied and Plaintiffs’ motion will be denied as moot.
Dean and Margaret Thomas, residents of Green Bay, Wisconsin, owned a 2009 Ford Flex
that was primarily designed and developed in Michigan and assembled in Canada. Initially, HertzRent-A-Car located in San Francisco, California purchased the Flex from an Oklahoma City,
Oklahoma Ford dealership. Although it is unclear how the vehicle ended up in Wisconsin, the
Thomases purchased the Ford Flex on June 30, 2010, from Eric von Schledorn Ford Inc. located in
Random Lake, Wisconsin. The purchase also included the remainder of the manufacturer’s
warranty. The Thomases titled, licensed, registered, and insured the Ford Flex in Wisconsin and
serviced the vehicle at Dorsch Ford Lincoln in Green Bay, Wisconsin until the warranty expired.
In October 2015, the Thomases drove their Ford Flex to Pennsylvania to visit their daughter.
While driving on the Pennsylvania Turnpike in Allegheny County on October 25, 2015, Margaret
hit a deer that had jumped in front of the Flex. As she slowed and moved to the shoulder of the
turnpike, the Flex was rear-ended. Plaintiffs allege that upon impact, the back of the right front
passenger seat where Dean was sitting malfunctioned.
As a result, Dean was rendered a
A motion to dismiss under Rule 12(b)(2) challenges whether the court has jurisdiction over
a party. Though the plaintiff has the burden of proving personal jurisdiction, the burden is not a
heavy one. Advance Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796,
799 800 (7th Cir. 2014). In deciding whether personal jurisdiction exists, the court may rely on the
complaint, affidavits, deposition testimony, exhibits, or other evidence in the record. See Research
Found. v. Sanofi Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). The court must draw all
inferences from the record in the plaintiff’s favor. PKWare, Inc. v. Meade, 79 F. Supp. 2d 1007,
1011 (E.D. Wis. 2000).
“A federal district court sitting in diversity must apply the personal jurisdiction rules of the
state in which it sits.” Kipp v. Ski Enter. Corp. of Wis., Inc., 783 F.3d 695, 697 (7th Cir. 2015).
Under Wisconsin law, a court must engage in a two-step inquiry to determine whether it may
exercise personal jurisdiction. First, the court must determine whether the defendants are subject
to jurisdiction under Wisconsin’s long-arm statute, Wis. Stat. § 801.05. Kopke v. A. Hartrodt,
S.R.L., 2001 WI 99, ¶ 8, 245 Wis. 2d 396, 629 N.W.2d 662. If the statutory requirements are
satisfied, the court must then decide whether the exercise of jurisdiction comports with the
requirements of due process. Id. Ford does not dispute that Wisconsin’s long-arm statute confers
jurisdiction in this case. Therefore, the court must determine whether its exercise of jurisdiction
satisfies the due process requirements.
The Due Process Clause of the Fourteenth Amendment allows a court to exercise personal
jurisdiction over an out-of-state defendant only if that defendant has “minimum contacts” with the
forum State, “such that the maintenance of the suit does not offend traditional notions of fair play
and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The concept of
minimum contacts protects a defendant from having to litigate in a distant forum and allows the
defendant to reasonably anticipate where he may be haled into court. See World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980). The primary focus of the personal jurisdiction
analysis “is the defendant’s relationship to the forum State.” Bristol-Myers Squibb Co. v. Superior
Court of Cal., San Fran. Cnty., 137 S. Ct. 1773, 1797 (2017). Personal jurisdiction may either be
specific or general, “depending on the extent of the defendant’s contacts with the forum state.” See
uBid, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010); Helicopteros Nacionales de
Columbia, S.A. v. Hall, 466 U.S. 408, 414 16 (1984). General jurisdiction exists only when a party
has “continuous and systematic” contacts with the forum State. Id. Corporations are found to have
“continuous and systematic” contacts with a forum State in which they are incorporated and their
principle place of business is located. See Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014).
Specific personal jurisdiction is proper only if the “defendant’s suit-related conduct . . .
create[s] a substantial connection with the forum State.” Walden v. Fiore, 134 S. Ct. 1115, 1121
(2014). Specific jurisdiction is appropriate where (1) the defendant purposefully directed its
activities at the forum State or purposefully availed itself of the privilege of conducting business in
that State and (2) the defendant’s forum-related activities caused the plaintiff’s injury. Tamburo v.
Dworkin, 601 F.3d 693, 702 (7th Cir. 2010) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985)). The purposeful availment inquiry “is ultimately about whether the party should
reasonably anticipate being haled into court in the forum state.” Trade Well Int’l v. United Cent.
Bank, 825 F.3d 854, 859 (7th Cir. 2016).
Plaintiffs assert that this court has specific personal jurisdiction over Ford based on the
stream of commerce theory. It has long been established that a court may properly exercise
jurisdiction over an out-of-state corporation when it “delivers its products into the stream of
commerce with the expectation that they will be purchased by consumers in the forum State.”
World-Wide Volkswagen Corp., 444 U.S. at 297 98. Nevertheless, the Supreme Court has yet to
reach a consensus on the proper test to determine whether a defendant “purposefully avails” itself
in the forum State under the stream of commerce theory.
The Court acknowledged the stream of commerce theory in World-Wide Volkswagen, but
further elaborated on the theory in Asahi Metal Industry Co. v. Superior Court of California, Solano
County, 480 U.S. 102 (1987). In that case, a plaintiff injured in a motorcycle accident in California
brought suit in California state court against the Japanese manufacturer of the allegedly defective
motorcycle tires. Id. at 105 06. While the Court unanimously agreed that the California state court
lacked personal jurisdiction over the manufacturer, the case resulted in numerous tests articulating
when a defendant purposefully avails itself in a forum State, none of which were approved by a
majority of the Court. Justice O’Connor, writing for a plurality of four, endorsed what is now
known as the “stream of commerce plus” theory. She stated that “[t]he placement of a product into
the stream of commerce, without more, is not an act of the defendant purposefully directed toward
the forum State.” Id. at 112. Instead, some “additional conduct” establishing the defendant’s “intent
or purpose to serve the market in the forum State” is necessary. Id. This additional conduct may
include “designing the product for the market in the forum State, advertising in the forum State,
establishing channels for providing regular advice to customers in the forum State, or marketing the
product through a distributor who has agreed to serve as the sales agent in the forum State.” Id.
Though Justice O’Connor did not conclusively limit “additional conduct” to these particular
examples, she did observe that “a defendant’s awareness that the stream of commerce may or will
sweep the product into the forum State does not convert the mere act of placing the product into the
stream into an act purposefully directed toward the forum State.” Id.
Justice Brennan, also writing for four justices, rejected the stream of commerce plus
approach, and instead supported a less-demanding test. He found that a defendant participating in
“the regular and anticipated flow of products from manufacture to distribution to retail sale” is
properly subject to jurisdiction so long as the defendant is “aware that the final product is being
marketed in the forum State.” Id. at 117 (Brennan, J., concurring in part and concurring in
judgment). Justice Stevens, joined by two justices, believed the constitutional determination of
minimum contacts cannot assume an “unwavering line . . . between ‘mere awareness’ that a
component will find its way into the forum State and ‘purposeful availment’ of the forum’s market.”
Id. at 122 (Stevens, J., concurring in part and concurring in judgment). Instead, he concluded that
a court must evaluate “the volume, the value, and the hazardous character” of the defendant’s
product to determine purposeful availment. Id.
A similarly-divided Court revisited the issue in J. McIntyre Machinery, Ltd. v. Nicastro, 564
U.S. 873 (2011). Justice Kennedy, writing for the plurality, adopted Justice O’Connor’s stream of
commerce plus approach. Id. at 885 (finding that “authority to subject a defendant to judgment
depends on purposeful availment, consistent with Justice O’Connor’s opinion in Asahi”). Justice
Breyer concurred in the judgment and declined to support any of the separate opinions from Asahi.
Id. at 888 (Breyer, J., concurring in judgment). Relying on World-Wide Volkswagen, Justice Breyer
concluded that a single, isolated sale of a defendant’s product in the forum State
“even if that
defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will
is not an adequate basis to assert personal jurisdiction over the defendant. Id.
The Seventh Circuit has not explicitly endorsed a single stream of commerce analysis since
the Court’s decision in J. McIntyre, though it indicated in Dehmlow v. Austin Fireworks that it would
apply the more permissive approach in Justice Brennan’s Asahi concurrence until a majority of the
Supreme Court rejected the test. 963 F.2d 941, 947 (7th Cir. 1992). In any event, the evidence of
record demonstrates that Plaintiffs have satisfied even the more stringent test set forth in Justice
O’Connor’s plurality opinion in Asahi and subsequently adopted by Justice Kennedy in J. McIntyre.
Plaintiffs allege that Ford has been continuously licensed to do business in Wisconsin since
2003 and has designated CT Corporation System located in Madison, Wisconsin as its registered
agent for service of process. They contend that Ford’s advertising in Wisconsin is pervasive and its
website specifically targets Wisconsin residents by allowing them to view the incentives and offers
available in their locality. ECF No. 15 at 3. Although Plaintiffs did not provide Wisconsin-specific
sales information, they noted that Ford has 122 dealerships located in Wisconsin that sell new and
used Ford-brand vehicles. Ford certifies “pre-owned” vehicles and offers incentives for consumers
that purchase a certified pre-owned Ford vehicle from one of its dealers. Id. at 4. Plaintiffs allege
that Ford is willing to serve consumers in Wisconsin and, as a result, has derived benefits from
Wisconsin residents purchasing and owning its new and used vehicles. In sum, Plaintiffs have made
a prima facie showing that Ford purposefully availed itself of the privilege of conducting activities
Ford asserts that the court cannot exercise specific jurisdiction over Ford because its general
Wisconsin-specific contact is unrelated to the Thomases’ 2009 Ford Flex and did not cause Plaintiffs’
injuries. It contends that the Ford Flex was primarily designed and developed in Michigan,
assembled at a Ford plant in Canada, and sold through an independent Ford dealership located in
Oklahoma City, Oklahoma to Hertz Corporation. The vehicle was then shipped to Hertz-RAC
South in San Francisco, California. Citing the Supreme Court’s most recent decisions regarding
specific personal jurisdiction, Bristol-Myers Squibb Co. v. Superior Court of California, San
Francisco County, 137 S. Ct. 1773 (2017), and Walden v. Fiore, 134 S. Ct. 115 (2014), Ford argues
that because it was not involved with any subsequent sales of the 2009 Ford Flex after it was
delivered to the Oklahoma dealership or its eventual entry into Wisconsin, the facts alleged in
Plaintiffs’ complaint do not arise out of and are not related to those activities Ford significantly and
purposefully directs at Wisconsin. These cases, however, did not alter the specific jurisdiction
analysis in the way that Ford suggests.
In Bristol-Myers, for instance, 86 California residents and 592 residents from 33 other states
filed a mass products liability action against Bristol-Myers in California state court, alleging injuries
caused by the pharmaceutical company’s drug Plavix. 137 S. Ct. at 1777. After focusing on the due
process considerations as applied to the nonresident plaintiffs suing in California, the Supreme Court
concluded the California courts could not exercise personal jurisdiction over their claims. The Court
observed that the nonresidents “were not prescribed Plavix in California, did not purchase Plavix in
California, did not ingest Plavix in California, and were not injured by Plavix in California.” Id. at
1781. The Court noted that in determining whether personal jurisdiction is present, a court must
consider a variety of interests, including “‘the interests of the forum State and of the plaintiff in
proceeding with the cause in the plaintiff’s forum of choice.’” Id. at 1780 (quoting Kulko v.
Superior Court of Cal., City & Cnty. of San Fran., 436 U.S. 84, 92 (1978)). The Court ultimately
concluded that absent a connection between the nonresident plaintiffs’ claims and the forum State,
“specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the
State.” Id. Even though the nonresidents could not bring a claim in California, however, the Court
recognized that they could pursue their claims in their respective home states. Id. at 1783. And even
more significant to this case, personal jurisdiction over the claims of the California plaintiffs who
purchased the product in California was never even questioned.
Moreover, in Walden, while stationed at a Georgia airport, a police officer working as a
deputized DEA agent searched two passengers and seized a large sum of cash from them, believing
it was connected to drug-related activity. 134 S. Ct. at 1119. The passengers subsequently filed a
lawsuit in the United States District Court for the District of Nevada, seeking damages under Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The Supreme Court held that the
officer lacked minimal contacts with Nevada because all of his actions giving rise to the passengers’
claims occurred outside the forum State. The Court recognized that the “defendant’s suit-related
conduct must create a substantial connection with the forum State,” and that this “relationship must
arise out of contacts that the ‘defendant himself’ creates with the forum State.” Id. at 1121 22
(quoting Burger King, 471 U.S. at 475). Further, “the plaintiff cannot be the only link between the
defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.” Id. In sum, the Court
concluded that the specific jurisdiction analysis must focus on the “relationship among the defendant,
the forum, and the litigation.” Id.
In this case, Plaintiffs have alleged a connection between their claims and Wisconsin. Even
though the Thomases’ accident did not occur in Wisconsin, Wisconsin has an interest in adjudicating
Plaintiffs’ claims here because its residents were allegedly injured by a Ford product they purchased
in the forum State. Along with the purchase of the 2009 Ford Flex, the Thomases received the
remainder of Ford’s manufacturer warranty on the vehicle, and serviced the vehicle under that
warranty at a Ford dealership in the forum State. The Thomases also titled, licensed, registered, and
insured the Ford Flex in Wisconsin since its purchase. Plaintiffs have also shown that they are not
the only link between Ford and Wisconsin and that their case is not based on any “random,
fortuitous, or attenuated” contacts Ford has made in Wisconsin. Id. at 1123 (quoting Burger King,
471 U.S. at 475). To satisfy the due process element of the personal jurisdiction analysis, the
particular product causing the injury need not be placed in the forum State by the defendant. Stated
differently, “the foreseeability that is critical to due process analysis is not the mere likelihood that
a product will find its way into the forum State. Rather, it is that the defendant’s conduct and
connection with the forum State are such that he should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp., 444 U.S. at 297; see also Bristol-Myers, 137 S. Ct. at 1785
(noting that court must consider whether “the defendant has ‘purposefully directed’ his activities at
the residents of the forum . . . and the litigation results from alleged injuries that ‘arise out of or
relate to’ those activities’” (internal citation omitted)). The fact that Ford did not initially sell the
Thomases’ Ford Flex in Wisconsin is wholly irrelevant to the personal jurisdiction inquiry. Rather,
it is Ford’s willingness to serve and sell to Wisconsin consumers, its pervasive marketing on multiple
platforms to Wisconsin residents, and its accrual of benefits from Wisconsin consumers buying its
products that make it reasonable for Ford to anticipate being haled into a Wisconsin court. Plaintiffs
have satisfied the due process requirements of the personal jurisdiction inquiry. Accordingly, Ford
is subject to personal jurisdiction in this court for the purposes of this action. Because no further
discovery is required on this matter, Plaintiffs’ motion for an extension of time to respond in order
to conduct discovery regarding personal jurisdiction will be denied as moot.
For the foregoing reasons, Ford’s motions to dismiss (ECF Nos. 9 & 17) are DENIED. It
is further ordered that Plaintiffs’ motion for an extension of time to conduct discovery (ECF No. 13)
is DENIED as moot. The Clerk is directed to set this matter on the court’s calendar for further
Dated this 10th day of October, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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