Hoeller v. Village of Barrington Manager

Filing 34

DECISION AND ORDER signed by Judge Lynn Adelman on 1/20/15 granting 7 Motion to Dismiss for Lack of Jurisdiction; denying 15 Motion to Stay. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
TIMOTHY L. HOELLER,
Plaintiff,
v.

Case No. 14-cv-0398

VILLAGE OF BARRINGTON MANAGER,
on behalf of the Village Board and Police,
Defendant.
_____________________________________________________________________
DECISION AND ORDER
Plaintiff Timothy Hoeller filed this complaint pro se alleging civil rights violations
under 42 U.S.C. § 1983. Defendant filed a motion to dismiss based on personal jurisdiction
and venue. Rather than responding to that motion, plaintiff filed a motion to stay. I denied
that motion to stay and gave plaintiff 14 days to respond to defendant’s motion to dismiss.
Again, plaintiff failed to respond to defendant’s motion and instead filed a second motion
to stay/motion to reconsider. He provides no new arguments in his second motion, and
therefore I will not reconsider my original decision; I decline to stay this case.
Although plaintiff has not responded to defendant’s motion to dismiss (despite
having additional time to do so), I have an independent duty to examine whether or not I
have jurisdiction to hear a case, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990),
and I will therefore consider whether I have personal jurisdiction over defendant. Based on
plaintiff’s own statements in his complaint, it is clear that I do not have personal jurisdiction
over this lawsuit. In a federal question case, where there is no federal provision for
nationwide service of process, I have personal jurisdiction to the extent permitted by
Wisconsin law. Fed. R. Civ. P. 4(k); Smith v. Jefferson Cnty. Bd. of Educ., 378 Fed. Appx.

582, 585 (7th Cir. 2010) (citing Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201 (7th Cir.
1997)); see also Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (“[Section] 1983
does not, by itself, confer nationwide service of process or jurisdiction upon federal district
courts to adjudicate claims.”). Under Wis. Stat. § 801.05, I have personal jurisdiction over
defendant only if: (1) at the time the action is commenced, defendant is present or
domiciled in Wisconsin, a Wisconsin corporation or limited liability company, or engaged
in substantial and not isolated activities in Wisconsin; (2) a Wisconsin statute specifically
confers personal jurisdiction; (3) the action alleges an injury which arose from an act or
omission within Wisconsin; (4) the action alleges an injury that occurred within Wisconsin
even if the act which caused the injury occurred outside Wisconsin; (5) the action relates
to Wisconsin services, goods, or contracts; (6) the action relates to property located in
Wisconsin; (7) or one of several very specific types of actions which are irrelevant to this
case. This case fits into none of these categories. Defendant is an Illinois municipality; all
the events which plaintiff describes in his complaint occurred entirely in Illinois, including
all acts by defendant and plaintiff’s alleged injuries; and the case does not involve
Wisconsin property, services, goods, or contracts.
I similarly lack personal jurisdiction under the Due Process Clause of the United
States Constitution, under which a defendant must have “purposefully established
‘minimum contacts’” in Wisconsin such that it is “not unreasonable to require him to submit
to the burdens of litigation in that forum.” Burger King Corp. V. Rudzewicz, 471 U.S. 462,
474–76 (1985). Minimum contacts can be established in two ways. First, I have general
jurisdiction over defendant if defendant’s contacts with Wisconsin are so “continuous and
systematic” that defendant has subjected itself to the jurisdiction of that state regardless
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of where the events giving rise to the suit occurred. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 415 (1984). Second, I have specific jurisdiction over defendant
if the actions giving rise to the suit occurred in Wisconsin. Id. at 414 n.8.
It is clear that I do not have general jurisdiction over defendant, an Illinois
municipality which does not have continuous and systematic contacts with the state of
Wisconsin. Nor can I find specific jurisdiction. The events giving rise to plaintiff’s claim, as
described in his complaint, all occurred in Illinois and have no connection to Wisconsin.
The only connection to Wisconsin that plaintiff alleges is that he now resides in Milwaukee
County. Where the plaintiff now resides is irrelevant to the question of personal jurisdiction.
What matters is the defendant’s contacts with Wisconsin, and I find that defendant lacks
sufficient minimum contacts for me to exercise personal jurisdiction over it.
I also conclude that the Eastern District of Wisconsin is not a proper venue for this
action. Under 28 U.S.C. § 1391(b), a civil action may only be brought in (1) the district
where defendant resides if all defendants reside in the same state; (2) the district where
a substantial part of the events giving rise to the claim occurred or where a substantial part
of the property at issue in the action is situated; or (3) if there is no appropriate district
under the first two, any district in which any defendant is subject to personal jurisdiction.
Defendant “resides” for purposes of § 1391(b)(1) “in any judicial district in which [it] is
subject to personal jurisdiction.” 28 U.S.C. § 1391(c)(2). Plaintiff’s complaint does not set
forth facts which establish that the Eastern District of Wisconsin is a proper venue because
defendant does not “reside” in the district, the events giving rise to this action did not occur
in the district, and defendant is not subject to personal jurisdiction here. And just as with

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personal jurisdiction, it is irrelevant to the venue analysis that plaintiff now resides in
Wisconsin; the federal venue statute focuses on the defendant.
I agree with defendant that the Northern District of Illinois, where defendant “resides”
and where these events occurred, is the proper venue for this action. Under 28 U.S.C. §
1406, I may transfer a case rather than dismiss it if transfer would “be in the interest of
justice.” However, I conclude that it would not be in the interest of justice to transfer this
case. With his complaint, plaintiff filed an Executive Committee Order from the Northern
District of Illinois which requires plaintiff to obtain leave to file new complaints in the
Northern District. See Executive Committee Order, In the Matter of Timothy Hoeller, Case
No. 11-c-6451 (N.D. Ill. Sept. 15, 2011) (ECF No. 1-2, at 3–5). Transferring this case to the
Northern District would, in effect, allow plaintiff to circumvent this standing order. Thus, I
will dismiss this case without prejudice for lack of personal jurisdiction and improper venue
under Federal Rules of Civil Procedure 12(b)(2) and (3).
THEREFORE, IT IS ORDERED that plaintiff’s motion to stay/motion to reconsider
(ECF No. 15) is DENIED.
IT IS FURTHER ORDERED that defendant’s motion to dismiss (ECF No. 7) is
GRANTED. This case is dismissed without prejudice.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2015.

s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge

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