Priority Environmental Solutions Inc v. The Stevens Company Limited

Filing 37

ORDER signed by Judge J P Stadtmueller on 12/18/15: granting 7 Defendant's Motion to Dismiss; DISMISSING this action for lack of personal jurisdiction; granting 34 Defendant's Motion to Restrict Document; granting 30 Plaintiff' ;s Motion to Restrict Document; and denying as moot 15 Plaintiff's Motion for Discovery limited to jurisdiction; and denying as moot 23 Plaintiff's Motion to Withdraw Motion for Discovery limited to jurisdiction. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PRIORITY ENVIRONMENTAL
SOLUTIONS, INC.,
Plaintiff,

Case No. 15-CV-871-JPS

v.
THE STEVENS COMPANY LIMITED,

ORDER
Defendants.
This action, originally filed in the Waukesha County Circuit Court on
June 25, 2015, was removed to this court on July 20, 2015, by the defendant,
The Stevens Company Limited (“Stevens”). (Docket #1) On August 20, 2015,
Stevens filed a motion to dismiss the complaint for lack of personal
jurisdiction. (Docket #7). On September 1, 2015, the plaintiff, Priority
Environmental Solutions, Inc. (“PES”), filed a motion for discovery limited
to jurisdiction and to extend time to respond to Stevens’s motion to dismiss.
(Docket #15). On September 18, 2015, PES filed a stipulation regarding
jurisdictional discovery (Docket #24) along with a motion to withdraw its
previous motion for discovery (Docket #23).
On November 4, 2015, PES filed its response to the motion to dismiss,
(Docket #31), and on November 18, 2015, Stevens filed its reply brief (Docket
#35). The matter is now fully briefed and ready for disposition. As discussed
more thoroughly below, the Court finds that Stevens is not subject to
personal jurisdiction in Wisconsin and, thus, the Court will grant Stevens’s
motion to dismiss.

1.

FACTUAL BACKGROUND1
PES is a Wisconsin corporation based in Pewaukee. (Compl. ¶ 1).

Stevens is a Canadian corporation with its headquarters located in Brampton,
Ontario. (Declaration of Brian Godwin. ¶ 4, Docket #9 (“Godwin Decl.”)).
PES manufactures sanitation products used in the medical community and
Stevens is a distributor of medical supplies and equipment. (Compl. 10;
(J. Stevens Dep. at 11)).2
Stevens does not maintain a place of business in Wisconsin and does
not sell, promote, or demonstrate goods or services to customers or other
persons in Wisconsin. (Godwin Decl. ¶ 4). Stevens does not lease or own any
real or personal property located in Wisconsin. (Godwin Decl. ¶ 5). Stevens
does not maintain a Wisconsin telephone number, mailing address, bank
account, or taxpayer identification number. (Godwin Decl. ¶ 6).
A third party, the Canadian Department of National Defense
(“Canadian DND”), introduced PES to Stevens on July 13, 2013, through an
email. Jacqueline Doucette, a customer service supervisor at Canadian DND,
sent an email inquiry to Laurie Marquis of Stevens and to Linda Wise of
Cardinal Health Canada, another Canadian product distributor. (Laurie
Marquis Declaration ¶ 7, Docket #10 (“Marquis Decl.”)). Ms. Doucette
explained that the Canadian DND was interested in a PES manufactured
medical drape product and asked whether Stevens or Cardinal Health would

1

The Court notes that at the motion to dismiss stage, the Court “take[s] as
true all well-pleaded facts alleged in the complaint and resolve[s] any factual
disputes in the [record] in favor of the plaintiff.” Tamburo v. Dworkin, 601 F.3d 693,
700 (7th Cir. 2010).
2

Stevens’s corporate designee, Jeffrey Peter Stevens, testified on October 16,
2015, pursuant to Fed. R. Civ. P. 30(b)(6). (Wegryzn Decl., Ex. A). For simplicity, the
Court will refer to this deposition as simply the “J. Stevens Dep.”

Page 2 of 18

be interested in working with PES to resell a smaller amount of PES’s drapes
to the Canadian DND. (Marquis Decl. ¶ 4). Ms. Doucette copied Elizabeth
Kemp of PES on the email. (Marquis Decl. ¶ 3). Neither Ms. Marquis nor
anyone else at Stevens responded to Ms. Doucette’s inquiry. (Marquis Decl.
¶ 5).
PES initiated contact directly with Stevens on January 22, 2014,
approximately six months after the email introduction. Ms. Kemp called Ms.
Marquis regarding the possibility of Stevens becoming a distributor for PES's
medical drape product, called the MedMat, in Canada. (Marquis Decl. ¶ 6).
Ms. Kemp requested a follow-up phone call with Ms. Marquis’s boss, Brian
Godwin. (Marquis Decl. ¶ 6). That same day, Ms. Marquis followed up on
the conversation in an email to Ms. Kemp, and stated that she was “looking
forward to doing business with [her] in the near future.” (Kemp Decl., Ex. B).
On February 5, 2014, Ms. Kemp emailed Stevens a draft version of a
document entitled “Mutual Confidentiality and Non-Disclosure Agreement”
(“NDA”).3 (Wegrzyn Decl., Exs. D & E). On February 11, 2014, Mr. Godwin
emailed Ms. Kemp to note he would return an executed version of the NDA
that day. (Wegrzyn Decl., Ex. F). Later that day, Mr. Godwin sent Ms. Kemp
an executed version of the NDA (Wegrzyn Decl., Ex. E). The NDA explicitly
stated that Wisconsin law governed the agreement. (Wegrzyn Decl., Ex. E).
On February 22, 2014, Ms. Marquis and Mr. Godwin had a telephone
conference with Ms. Kemp regarding their potential distributor relationship.
(Marquis Decl. ¶ 7). During the call, Ms. Kemp explained that the Canadian

3

It is unclear what, if any, communications took place between PES and
Stevens from the January 5, 2014 email until February 5, 2014. PES states “[a]s the
discussions between the two sides continued...,” (Pl’s Opp. at 5), however, neither
party provides any facts as to specific details of these communications.

Page 3 of 18

DND only wanted to purchase small quantities of the Medmat, because the
Canadian DND used approximately only 400 units per year and that the
product had a limited three-year shelf life. (Marquis Decl. ¶ 8).
On February 19, 2014, Ms. Kemp emailed Mr. Godwin and Ms.
Marquis a draft agreement entitled “Priority Environmental Solutions, Inc.
Reseller Agreement” (“Reseller Agreement”). (Wegrzyn Decl., Ex. J). On
February 21, 2014, Mr. Godwin responded that he received the agreement
and would get back to Ms. Kemp the following Monday. (Wegrzyn Decl., Ex.
K at 2). Stevens made revisions to the draft agreement regarding insurance
(J. Stevens Dep. at 100), and on March 10, 2014, Mr. Godwin executed the
Reseller Agreement on behalf of Stevens.4 (Godwin Decl., Ex. A).
The Reseller Agreement called for a twelve-month term and
contemplated an additional twelve-month term subject to an agreement by
the parties of a mandatory minimum sales level. (Compl., Ex. 1, Docket #1-1).
The mandatory minimum sales portion of the agreement, however, was left
blank. (Compl., Ex. 1, Docket #1-1). Section 16.1 of the Reseller Agreement
provided that it was to be governed by Wisconsin law. (Compl., Ex. 1, Docket
#1-1). At the time Stevens executed the Reseller Agreement, it knew that PES
was a Wisconsin company and believed that PES would be shipping its
products from Wisconsin. (J. Stevens Dep. at 49). Notably, the Reseller
Agreement, however, did not include any specific information as to the
location from which PES would ship its products. (See Compl., Ex. 1).
The Reseller Agreement provided that Stevens was required to place
an initial stocking order within ninety days. (Compl., Ex. 1). On April 9, 2014,

4

It appears that Mr. Godwin did not provide PES with a copy of the Reseller
Agreement until March 25, 2014. (Wegrzyn Decl., Ex. M).

Page 4 of 18

Stevens assured PES that its initial stocking order would be placed the
following day. (Kemp. Decl., Ex. C). Stevens’s purchasing department
informed Mr. Godwin that it required a proforma invoice from PES before
Stevens could issue any advance payment. (Godwin Decl. ¶ 12).
On May 20, 2014, Ms. Kemp sent Mr. Godwin a proforma invoice that
stated “FOB China and Distributor is responsible for shipment costs.”
(Godwin Decl., Ex. B). This was the first time that Stevens learned that PES’s
products were to be manufactured and shipped from China. (Godwin Decl.
¶ 13). This detail was essentially the breaking point of Stevens’s and PES’s
relationship, and on September 23, 2014, Mr. Godwin emailed Ms. Kemp that
the FOB China was a “game ender” for Stevens and that they “were not the
right company for [PES] right now.” (Kemp. Decl., Ex. E).
PES alleges that as a direct result of Stevens’s breach of the Reseller
Agreement, PES has lost the opportunity to make substantial sales of its
products to the Canadian DND and other customers, and that is has suffered
significant reputational damage with prospective customers. (Compl. ¶ ¶ 2324).
2.

LEGAL STANDARD
Rule 12(b)(2) provides for dismissal where a court lacks personal

jurisdiction over a party. Fed. R. Civ. P. 12(b)(2). “The plaintiff bears the
burden of establishing personal jurisdiction when the defendant challenges
it.” See N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). On a
motion challenging personal jurisdiction, the Court may “receive and weigh”
affidavits and other evidence outside the pleadings. See Purdue Research
Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). If the Court
does not hold an evidentiary hearing to resolve factual disputes, as is the case
here, the plaintiff “need only make out a prima facie case of personal
Page 5 of 18

jurisdiction.” See N. Grain, 743 F.3d at 491. On a motion pursuant to Rule
12(b)(2), the Court will “resolve factual disputes in the plaintiff's favor.” Id.
The Court, however, also “accept[s] as true any facts contained in the
defendant's affidavits that remain unrefuted by the plaintiff.” GCIU–Employer
Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1020 n.1 (7th Cir. 2009).
Personal jurisdiction refers to a court's “power to bring a person into
its adjudicative process.” BLACK'S LAW DICTIONARY 930 (9th ed. 2009).
“A district court sitting in diversity has personal jurisdiction over a
nonresident defendant only if a court of the state in which it sits would have
jurisdiction.” Purdue, 338 F.3d at 779 (citing Hyatt Int'l Corp. v. Coco, 302 F.3d
707, 713 (7th Cir. 2002)). This is technically a two-part analysis: the Court
must determine whether Wisconsin's state courts would have jurisdiction
under the state's long-arm statute, Wis. Stat. § 801.05, and whether personal
jurisdiction would comport with principles of due process. See Purdue, 338
F.3d at 779. But Wisconsin's long-arm statute is liberally construed in favor
of conferring jurisdiction to the maximum extent allowable under principles
of due process. See, e.g., Kopke v. A. Hartrodt S.R.L., 2001 WL 99, ¶ 10, 245
Wis.2d 396, 629 N.W.2d 662; Fabio v. Diversified Consultants, Inc., No.
13–CV–524, 2014 WL 713104 at *2 (W.D. Wis. Feb. 25, 2014). As such, the
Court can easily collapse the personal jurisdiction issue into one question:
whether personal jurisdiction over Stevens comports with principles of due
process.
The federal constitutional limits of a court's personal jurisdiction in a
diversity case are found in the Fourteenth Amendment's due-process clause,
see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464 (1985), which “protects
an individual's liberty interest in not being subject to the binding judgments
of a forum with which he has established no meaningful ‘contacts, ties, or
Page 6 of 18

relations,’” Id. at 471–72 (quoting Int'l Shoe Co. v. Wash., Office of
Unemployment Comp. & Placement, 326 U.S. 310, 319 (1945)). A forum state's
courts may not exercise personal jurisdiction over a nonconsenting,
out-of-state defendant unless the defendant has “certain minimum contacts
with it such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Int'l Shoe, 326 U.S. at 316
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).
There are two types of personal jurisdiction: general and specific. See
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414–16 (1984); see also
Hyatt Int'l, 302 F.3d at 713. Recently, the Supreme Court held that general
jurisdiction requires “‘affiliations with the State [that] are so “continuous and
systematic” as to render [the defendant] essentially at home in the forum
State,’” Daimler AG v. Bauman, 134 S.Ct. 746, 754 (2014) (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011)). If
such contacts exist, “the court may exercise personal jurisdiction over the
defendant even in cases that do not arise out of and are not related to the
defendant's forum contacts.” Hyatt Int'l, 302 F.3d at 713. Specific jurisdiction,
on the other hand, is more limited and exists for controversies that “arise out
of” or “relate to” a defendant's forum contacts. Id. PES contends that the

Page 7 of 18

Court has both general and specific jurisdiction over Stevens. The Court
addresses both jurisdictional theories below.5
3.

DISCUSSION
Stevens’s motion to dismiss argues that it is not subject to either

general or specific personal jurisdiction in Wisconsin. (Def’s Opening Br. at
5-6, Docket #12). In contrast, PES argues that Stevens’s contacts with
Wisconsin are sufficient to support either general or specific personal
jurisdiction. (Pl’s Opp. at 10). The Court will discuss each type of personal
jurisdiction separately, and, as detailed below, the Court finds that Stevens’s
contacts with Wisconsin are insufficient to support either general or specific
personal jurisdiction over Stevens.
3.1

General Personal Jurisdiction

General jurisdiction does not depend on any connection between the
underlying claim and the forum. Abelesz v. OTP Bank, 692 F.3d 638, 654 (7th
Cir. 2012). “‘A court may assert general jurisdiction over foreign (sister-state
or foreign-country) corporations to hear any and all claims against them
when their affiliations with the State are so “continuous and systematic” as
to render them essentially at home in the forum State.’” Id. (quoting Goodyear

5

It is worthy to note that the complexity of personal jurisdiction is intensely
fact driven, thus, the Court’s analysis will differ from case to case. As a liberty
protection enshrined in the Fourteenth Amendment, a finding of personal
jurisdiction over a defendant should not turn on a “gotcha” moment of a
deposition. As such, an attorney’s tongue twisting questions, such as “How
many contacts constitutes continuous contact,” (Docket #36-2 at 12), provide
little, if anything, to inform the Court’s analysis. This is certainly not a
question that any deponent should be able to answer as it calls for a
legal conclusion. And, indeed, the answer to, “How many contacts
constitutes continuous contact?,” is akin to the well-known Tootsie Pop
question, in that the “world may never know.” See Scientific Endeavors,
Tootsie.com, http://www.tootsie.com/howmanylick-experiments (last visited
December 15, 2015).

Page 8 of 18

131 S. Ct. at 2851). Where a court has general jurisdiction over a defendant,
that defendant may be called into that court “to answer for any alleged
wrong, committed in any place, no matter how unrelated to the defendant's
contacts with the forum.” uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 426
(7th Cir. 2010).
Exercising general personal jurisdiction over a defendant can result in
severe consequences, and for that reason courts have held that the
constitutional requirement for general jurisdiction is “considerably more
stringent” than that required for personal jurisdiction. Abelesz, 692 F.3d at
654 (quoting Purdue, 338 F.3d at 787). “‘[T]he paradigm forum for the exercise
of general jurisdiction is the individual's domicile.’” Daimler AG, 134 S. Ct. at
760 (quoting Goodyear, 131 S. Ct. at 2853–54). Although courts have clarified
that general jurisdiction can be appropriate in more forums than a person's
domicile alone, however, that will only be in the exceptional case. See Daimler
AG, 134 S. Ct. at 761, n.19.
PES argues that Stevens is subject to general personal jurisdiction in
Wisconsin because Stevens has regularly purchased significant amounts of
medical equipment from multiple Wisconsin-based manufactures. (Pl’s Opp.
at 19). PES points to 529 separate purchase agreements that Stevens made
with Wisconsin-based companies found during the limited jurisdiction
discovery period of thee years. The total amounts that Stevens paid
Wisconsin-based manufacturers since 2012 exceeds $500,000.00. PES relies on
Shepard Investment International LD v. Verison Communications, Inc., 373 F.
Supp. 2d 853 (E.D. Wis. 2005), for the proposition that “a non-resident can
conduct sufficient businesses to justify general jurisdiction without
maintaining a business location in a state or acting through an in-state
agent.” Id. at 863. PES concludes that “Stevens voluntarily chooses to do
Page 9 of 18

regular business in Wisconsin and should reasonably be expected to defend
itself in Wisconsin court.” (Pl’s Opp. at 20). The Court disagrees.
The Court finds that this is nowhere near the “exceptional case,” and
that Stevens, a Canadian company organized under the laws of Ontario, was
not “at home” in Wisconsin to justify general personal jurisdiction. Stevens’s
purchase agreements with third party Wisconsin companies is insufficient to
justify the Court’s exercise of general jurisdiction. PES’s reliance on case law
decided prior to the Supreme Court’s guiding language in Goodyear and
Daimler AG and ensuing Seventh Circuit precedent is unpersuasive to the
Court’s analysis here. More importantly, Shepard Investment is factually
distinguishable from this case in two significant respects: (1) the Shepard
Investment defendant’s number of contacts with the forum state, business
relationships with over 140 Wisconsin banks, and 15,000 Wisconsin
shareholders who received numerous mailings from the defendant each year,
was substantially more than Steven’s contacts with three Wisconsin-based
companies in this case; and (2) the Shepard Investment defendant engaged in
substantial lobbying activities in Wisconsin that reinforced the court’s
decision for general jurisdiction, which is also not present in this case. See
Shepard Invest., 373 F. Supp. 2d at 863.
Stevens’s purchases from a few third-party vendors located in
Wisconsin for resale in Canada do not rise to the level of being so extensive
that Stevens is “at home” in Wisconsin. To hold otherwise, and allow Stevens
to be hailed into Wisconsin courts for any litigation, arising out of any
transaction, anywhere in the world, would be simply unfair. See Purdue, 338
F.3d at 787. As such, the Court finds that Stevens is not subject to general
personal jurisdiction in Wisconsin. The Court now turns to discuss PES’s
remaining option, specific personal jurisdiction.
Page 10 of 18

3.2

Specific Jurisdiction

To support an exercise of specific personal jurisdiction, the
defendant’s contacts with the forum state must “directly relate to the
challenged conduct or transaction.” Tamburo v. Dworkin, 601 F.3d 693, 701,
710 (7th Cir. 2010) (citing GCIU–Emp'r Ret. Fund, 565 F.3d at 1024). “Specific
personal jurisdiction is appropriate where (1) the defendant has purposefully
directed his activities at the forum state or purposefully availed himself of
the privilege of conducting business in that state, and (2) the alleged injury
arises out of the defendant's forum-related activities.” Id. (citing Burger King,
471 U.S. at 472). The exercise of specific jurisdiction must also comport with
traditional notions of fair play and substantial justice. Id. (citing Int'l Shoe, 326
U.S. at 316).
The defendant’s conduct and connection with the forum state must be
substantial enough to make it reasonable for the defendant to anticipate that
he could be hailed into court there. Burger King, 471 U.S. at 474. This
purposeful-availment requirement ensures that a defendant's amenability to
jurisdiction is not based on “random, fortuitous, or attenuated contacts,” id.
at 475 (internal quotation marks omitted), but on contacts that demonstrate
a real relationship with the state with respect to the transaction at issue, see
Purdue, 338 F.3d at 780.
In looking to contacts for purposes of specific jurisdiction,
The relevant contacts are those that center on the relations
among the defendant, the forum, and the litigation. Crucially,
not just any contacts will do: “For a State to exercise
jurisdiction consistent with due process, the defendant's
suit-related conduct must create a substantial connection with
the forum State.” The “mere fact that [defendant's] conduct
affected plaintiffs with connections to the forum State does not
suffice to authorize jurisdiction.” Furthermore, the relation
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between the defendant and the forum “must arise out of
contacts that the ‘defendant himself’ creates with the forum....”
Contacts between the plaintiff or other third parties and the
forum do not satisfy this requirement.
Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796,
801 (7th Cir. 2014), as corrected (May 12, 2014) (quoting Walden v. Fiore, –––
U.S. ––––, 134 S. Ct. 1115 (2014); citing Int'l Shoe, 326 U.S. at 310; Keeton v.
Hustler Mag ., Inc., 465 U.S. 770, 775; Burger King, 471 U.S. at 475.
With respect to contract disputes, “contracting with an out-of-state
party alone cannot establish automatically sufficient minimum contacts in the
other party’s home forum.” Purdue, 338 F.3d at 781 (citing Burger King, 471
U.S. at 478). Instead, we conduct a context-sensitive analysis of the contract,
examining “prior negotiations, contemplated future consequences, the terms
of the contract, and the parties’ course of actual dealing with each other.” Id.
(citing Burger King, 471 U.S. at 479). So long as a commercial defendant’s
efforts are purposefully directed toward residents of the forum state, the fact
that the defendant has not physically entered it does not defeat personal
jurisdiction there. Burger King, 471 U.S. at 476. Although even a single act can
support the exercise of personal jurisdictions, the Supreme Court has held
that personal jurisdiction may exist only so long as the act has a “substantial
connection” with the forum state. See Burger King, 471 U.S. at 475 n.18.
PES argues that the facts of this case demonstrate a “multitude of
actions by Stevens directed at Wisconsin” that allow the Court to exercise
specific jurisdiction. (Pl’s Opp. at 10). As PES describes them, Stevens’s
contacts directed at Wisconsin include: (1) Stevens sending the first written
communications between the parties; (2) Stevens sent both executed versions
of the NDA and the Reseller Agreement to PES in Wisconsin, which

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expressly selected Wisconsin as the governing law; and (3) Stevens knew
that PES was located in Wisconsin and expected that the products would be
shipped from Wisconsin. (Pl’s Opp. at 10-11).
Not surprisingly, given the factual-specific nature of personal
jurisdiction analysis, both parties were able to cite cases supporting their
arguments. Yet, having balanced the factors for and against a finding of
specific personal jurisdiction, the Court finds that PES has not met its burden
of showing that Stevens purposefully availed itself of the privilege of doing
business in Wisconsin such that Sevens should have foreseen being hailed
into court here. While the Court could, of course, go on at length describing
each and every factual similarity and difference of every case cited by the
parties, indeed they are numerous, the Court finds this exercise would not
be particularly helpful to its analysis. Instead, the Court finds it more useful
to look to recent Seventh Circuit case law describing the boundaries of when
specific personal jurisdiction exists and when it does not, and then applying
those limits to the facts of this case.
Recently, the Seventh Circuit in Northern Grain, outlined the boundaries
of specific personal jurisdiction in a contract case. 743 F.3d at 494. There, the
court distinguished Lakeside Bridge & Steel Co. v. Mountain State Construction
Company, 597 F.2d 596 (7th Cir. 1979), a case finding no personal jurisdiction
over the defendant, with Madison Consulting Group v. South Carolina, 752 F.2d
1193 (7th Cir. 1985), where the court did find personal jurisdiction. The
Northern Grain court discussed cases distinguishing and criticizing the Lakeside
decision, however, the court also emphasized that Lakeside is still good law.
Northern Grain, 743 F.3d at 494. Notably, the Northern Grain court described
Lakeside “as marking something of a borderline for a no-jurisdiction” and that
“‘when a defendant’s contacts with the forum state have been as—if not
Page 13 of 18

more—limited than those of the defendant in Lakeside, this court has denied
personal jurisdiction.’” (quoting Madison Consulting, 752 F.2d 1193 at 1200).
In Lakeside, the court found that Wisconsin lacked personal jurisdiction
over a West Virginia-based defendant who ordered “structural assemblies”
from the Wisconsin-based plaintiff without ever having set foot in Wisconsin.
597 F.2d at 598. The court recognized that although the performance of the
contract would take place primarily within the forum state, the contract
negotiations and acceptance took place via mail, and “the contacts with
Wisconsin...consist[ed]

solely

of

the

unilateral

activity

of”

the

Wisconsin-based plaintiff; no other circumstances indicated that the West
Virginia company purposefully availed itself of the privilege of conducting
activities within Wisconsin. Id. at 603 (internal quotation marks omitted).
In Northern Grain, the court found no personal jurisdiction in Illinois
over a Wisconsin defendant where the plaintiff “wasn’t actively marketing his
grain to [the forum state’s] companies; he just happened to get acquainted
with [the plaintiff] at the seed-corn trade meeting in Illinois.” 743 F.3d at 496.
When looking at the parties’ contract and the actual course of dealings, the
court found that the defendants’ task—to grow and deliver grain outside of
the forum state—were distinct tasks and did not create “continuing
obligations,” unlike other contract cases such as the franchise contract in
Burger King or the insurance contracts in Insurance Health. See id. at 495 (citing
Burger King, 471 U.S. at 480 and Travelers Health Ass'n, 339 U.S. at 648). The
court also found significant the fact that all preliminary negotiations took
place remotely, over the phone, when the defendant was not located in the
forum state. Id. Finally, and perhaps most notably, the Northern Grain court
found no personal jurisdiction even when the defendant had contracted with

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the plaintiff “from time to time” during a period of approximately nine years
while knowing the plaintiff was based in the forum state, Illinois. Id. at 496.
Here, the Court finds Stevens’s contacts with Wisconsin to be even
more limited than those of the defendants in both Lakeside and Northern Grain,
and thus, the Court does not find specific personal jurisdiction. Similar to the
defendant in Northern Grain, Stevens has never actively marketed, advertised,
or sold its products in Wisconsin; Stevens just happened to become
acquainted with PES when a third party, the Canadian DND, introduced the
companies to each other and then PES initially reached out to Stevens to begin
a business relationship.6 The parties had no prior relationship and Stevens
never physically entered Wisconsin for any reason in relation to the contracts
at issue. The case against personal jurisdiction is stronger in this case as
opposed to the Northern Grain defendant who physically traveled to the forum
state, Illinois, and made contact with the plaintiff at a seed-corn trade meeting
in Illinois. See N. Grain, 743 F.3d at 496. These factors weigh against a finding
that Stevens purposefully directed its activities towards Wisconsin.
Nor do Stevens’s negotiations and actual course of dealings with PES
dictate a finding of personal jurisdiction. In looking at the negotiations that
took place between the parties prior into entering the NDA and Reseller
Agreement, the phrase, “the proof is in the pudding,” comes to mind. Indeed,
the parties negotiations were so limited and undeveloped that neither party

6

PES emphasizes the fact that Stevens sent the first “written
communication” between the parties. (Pl’s Opp. at 10). However, PES points to no
case law or other argument as to why the Court should find the first written
communication to be more significant than the telephone conversation where PES
initiated contact with Stevens. The Court is not persuaded that the mode of
communication should matter at all to its analysis, and instead focuses on the fact
that PES first reached out to Stevens.

Page 15 of 18

ever discussed the location from where PES would ship its products—a
seemingly important factor which ultimately led to Stevens’s alleged breach
of the agreement. (See Kemp. Decl., Ex. E) (noting that FOB China was a
“game ender” for Stevens). The negotiations lasted only approximately two
months—from the January 22, 2014, initial PES telephone call until March 25,
2014, when Stevens delivered the executed Reseller Agreement to PES.
During that time period, Stevens sent PES approximately only five, relatively
short, emails, and the parties made a small number of phone calls to each
other (the exact number of phone calls is unclear based on the record). During
all negotiations, Stevens was located in Canada and not in Wisconsin, which
also weighs against personal jurisdictions. See N. Grain, 743 F.3d at 495
(distinguishing cases where parties discussed contracts over the telephone
from cases where meetings leading to contract formation were held in the
forum state). Given these facts, the Court finds that the parties’ negotiations
and actual course of dealings were limited and do not support a finding of
personal jurisdiction.
Finally, Stevens’s contacts with PES were significantly less than the
nine-year business relationship between the parties in Northern Grain—
whereas here the Reseller Agreement involved a term of only one year and
Stevens allegedly breached the agreement even prior to the exchange of any
goods.7 See N. Grain, 743 F.3d at 496.

7

The Court recognizes that the Reseller Agreement allowed for a renewal
of the purchase agreement provided that Stevens met a certain sales volume,
however, this portion of the contract was specifically left blank. (See Compl., Ex.
1, Docket #1-1). Of course, almost any contract could be renewed, but that is not
the question before the Court. Based on the facts presented in this case, the Court
views the dealings between the parties as a twelve-month agreement with only the
potential for a renewal.

Page 16 of 18

Although the court recognizes that the NDA and the Reseller
Agreement between the parties both stated that Wisconsin law governed the
agreements, this factor, though certainly persuasive to PES’s position, is only
one among many animating the Court’s analysis, and is insufficient to carry
the day for PES in this case. See Burger King, 471 U.S. at 482 (noting that a
choice-of-law provision in a contract, standing alone, is insufficient to confer
jurisdiction). In looking at the totality of the circumstances, Stevens had
significantly less contacts with Wisconsin than the defendants in Northern
Grain and Lakeside, and thus, the case against personal jurisdiction is even
stronger here.
For these reasons, the Court concludes that Stevens has not established
the requisite minimum contacts with Wisconsin to be hailed into court here,
and thus, PES has failed to meet its burden in establishing a prima facie case
of specific personal jurisdiction. Because the Court finds that PES has not
established that Stevens had the necessary minimum contacts to establish
personal jurisdiction, the Court need not determine whether the assertion of
personal jurisdiction would comport with “fair play and substantial justice.”
Burger King, 471 U.S. at 476.
4.

CONCLUSION
As discussed above, the Court finds that it does not have either general

personal jurisdiction or specific personal jurisdiction over Stevens in
Wisconsin. As such, the Court will grant Stevens’s motion to dismiss and will
dismiss this action in its entirety for lack of personal jurisdiction.
Accordingly,
IT IS ORDERED that Stevens’s motion to dismiss the complaint
(Docket #7) be and the same is hereby GRANTED and this action be and the
same is hereby DISMISSED for lack of personal jurisdiction;
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IT IS FURTHER ORDERED that Stevens’s motions to restrict
document (Docket #34) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that PES’s motion to restrict document
(Docket #30) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that PES’s motion for discovery limited
to jurisdiction (Docket #15) and motion to withdraw motion for discovery
limited to jurisdiction (Docket #23) be and the same are hereby DENIED as
moot.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 18th day of December, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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