Day on Torts
At what point do email blasts from one state into another allow a defendant to be sued in the state where the emails were sent (and where the plaintiff resides)?
Plaintiff lived in Illinois and was injured at a ski resort in Wisconsin. He sued the resort in Illinois and the resort moved to dismiss for lack of personal jurisdiction.
The evidence indicated that 65 – 70% of the guests at the ski resort were from Illinois and that representatives of the resort attended a trade show in Chicago each year. The resort did no print or other ads in Illinois. It did collect email addresses from people, including those from Illinois, and did email blasts in an effort to solicit customers. It also had a website where people from Illinois and elsewhere could reserve rooms (but not purchase lift tickets. Finally, it offered tour packages from Chicago to the resort.
The Seventh Circuit Court of Appeals affirmed dismissal of the case, finding a lack of personal jurisdiction over the Wisconsin entity in Illinois. In Kipp v. Ski Enter. Corp, No 14-2527 (7th Cir. 2015), the court summarized the current law of personal jurisdiction as follows:
In recent years, the Supreme Court has clarified and, it is fair to say, raised the bar for this type of jurisdiction. Because general jurisdiction exists even with respect to conduct entirely unrelated to the forum state, the Court has emphasized that it should not lightly be found. Instead, as the quote above shows, general jurisdiction exists only when the organization is “essentially at home” in the forum State. Goodyear, 131 S. Ct. at 2851. Thus far, the Court has identified only two places where that condition will be met: the state of the corporation’s principal place of business and the state of its incorporation. Daimler, 134 S. Ct. at 760. Any additional candidates would have to meet the stringent criteria laid out in Goodyear and Daimler. Those criteria require more than the “substantial, continuous, and systematic course of business” that was once thought to suffice. Id. at 760–61. The Due Process Clauses of the Fifth and Fourteenth Amendments permit courts, federal and state, to exercise general jurisdiction only when “the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit … on causes of action arising from dealings entirely distinct from those activities.” Id. at 761 (quoting Int’l Shoe, 326 U.S. at 318).
It then applied the law to the facts are found by the district court:
it is undisputed that neither of Daimler’s “ex- emplar bases” applies; Ski Enterprise is a Wisconsin corporation, and it has its principal place of business in that state. Kipp accurately notes that it has a few contacts with Illinois, including its attendance at the annual trade show in Chica- go, its use of that show to collect the email addresses of Illinois residents for marketing purposes, its targeting of Illinois customers through the Chicagoland Express package, its success in attracting a large number of such customers to the Devil’s Head Resort, and the ability of Illinois customers to visit the Devil’s Head Resort/Ski Enterprise website. These contacts come nowhere close to the Goodyear/Daimler standard. In fact, even before the Supreme Court’s recent pronouncements, Illinois courts and federal courts applying Illinois law have often found a lack of general jurisdiction in similar situations.
The court concluded by saying that
Ski Enterprise’s contacts with Illinois are insubstantial and episodic. While Goodyear and Daimler may have left some room for the exercise of general jurisdiction in the absence of incorporation or principal place of business in the forum state, this is not one of those rare situations.
It is obvious that the law of personal jurisdiction that we learned in law school so many years ago has changed substantially.